Historical and Revision Notes

1966 Act

The section is supplied to establish basis of reference to employees in this title.

1967 Act

This section amends various sections [§§2101, 4102, 4109, 5541, 8101] of title 5, United States Code, to reflect 1965 Reorganization Plan No. 2 (79 Stat. 1318), effective July 13, 1965, which consolidated the Coast and Geodetic Survey and the Weather Bureau to form a new agency in the Department of Commerce to be known as the Environmental Science Services Administration.

Amendments

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Short Title of 1998 Amendment

Pub. L. 105–339, §1, Oct. 31, 1998, 112 Stat. 3182, provided that: "This Act [enacting sections 3330a to 3330c of this title, section 1316a of Title 2, The Congress, section 115 of Title 3, The President, and section 1354 of Title 31, Money and Finance, amending sections 2108, 2302, and 3304 of this title and section 4212 of Title 38, Veterans' Benefits, repealing section 1599c of Title 10, Armed Forces, enacting provisions set out as notes under section 2302 of this title and section 601 of Title 28, Judiciary and Judicial Procedure, and amending provisions set out as a note under section 106 of Title 49, Transportation] may be cited as the 'Veterans Employment Opportunities Act of 1998'."

Short Title of 1994 Amendment

Pub. L. 103–226, §1, Mar. 30, 1994, 108 Stat. 111, provided that: "This Act [amending sections 3381, 4101, 4103, 4105, 4107, 4108, 4113, 4118, 5597, 8351, 8433 to 8435, 8437, 8440a to 8440d of this title and section 1206 of Title 45, Railroads, repealing sections 4106 and 4114 of this title, enacting provisions set out as notes under sections 3101, 3381, 5597, 8331, and 8351 of this title, and amending provisions set out as a note under section 403–4 of Title 50, War and National Defense] may be cited as the 'Federal Workforce Restructuring Act of 1994'."

Short Title of 1990 Amendment

Pub. L. 101–508, title VII, §7202(a), Nov. 5, 1990, 104 Stat. 1388–335, provided that: "This section [amending sections 2105, 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8347, 8401, 8461, and 8901 of this title and enacting provisions set out as notes under section 2105 of this title] may be cited as the 'Portability of Benefits for Nonappropriated Fund Employees Act of 1990'."

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

Coordination of Title VII of Pub. L. 101–508 With Section 909 of Title 2

Pub. L. 101–508, title VII, §7301, Nov. 5, 1990, 104 Stat. 1388–341, provided that: "For purposes of section 202 of the Balanced Budget and Emergency Deficit Reaffirmation Act of 1987 [probably means section 202 of the Balanced Budget and Emergency Deficit Control Reaffirmation Act of 1987, Pub. L. 100–119, which was formerly classified to section 909 of Title 2, The Congress], this title and the amendments made by this title [amending sections 552a, 2105, 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8334, 8339, 8342, 8343a, 8347, 8348, 8401, 8420a, 8461, 8901, 8902, 8904, 8906, 8909, and 8910 of this title, enacting provisions set out as notes under this section and sections 552a, 2105, 8334, 8343a, 8348, 8902, 8904, and 8906 of this title, amending provisions set out as notes under sections 8343a and 8906 of this title, and repealing provisions set out as notes under sections 8343a and 8348 of this title] shall be considered an exception under subsection (b) of such section."

§2101a. The Senior Executive Service

The "Senior Executive Service" consists of Senior Executive Service positions (as defined in section 3132(a)(2) of this title).

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415 of Pub. L. 95–454, set out as a note under section 3131 of this title.

§2102. The competitive service

(a) The "competitive service" consists of—

(1) all civil service positions in the executive branch, except—

(A) positions which are specifically excepted from the competitive service by or under statute;

(B) positions to which appointments are made by nomination for confirmation by the Senate, unless the Senate otherwise directs; and

(C) positions in the Senior Executive Service;

(2) civil service positions not in the executive branch which are specifically included in the competitive service by statute; and

(3) positions in the government of the District of Columbia which are specifically included in the competitive service by statute.

(b) Notwithstanding subsection (a)(1)(B) of this section, the "competitive service" includes positions to which appointments are made by nomination for confirmation by the Senate when specifically included therein by statute.

(c) As used in other Acts of Congress, "classified civil service" or "classified service" means the "competitive service".

Subsection (a)(1) is based on former section 638, which placed positions in the executive branch of the Government generally in the competitive service by the requirement that employment be predicated on passing an examination or being exempted from examination, and section 1 of the Act of Nov. 26, 1940, ch. 919, title I, 54 Stat. 1211 (see table III), which authorized the President, subject to certain exceptions, to place in the classified civil service positions in the Executive departments, independent establishments, and other agencies of the Government. In that Act the word "executive" has been construed to modify "departments", "independent establishments"; and "other agency". This construction is supported by the language of the Act of Jan. 16, 1883, and is embodied in Civil Service Rule I. Acting under this statute, the President has placed all but a comparatively few of the positions covered by the Act of Nov. 26, 1940, in the competitive service. The remainder are covered by the exceptions contained in the Civil Service Rules and Regulations. The authority of the President conferred by the Act of Nov. 26, 1940, has been superseded in part by exceptions created by statutes enacted after that date. The effect of these exceptions and the power conferred on the President by former section 633(2)8 (last sentence) to make exceptions to the Civil Service Rules are preserved by the words "positions which are specifically excepted from the competitive service by or under statute".

In subsection (a)(1)(B), the words "or to pass an examination" are omitted as covered by the exclusion from the "competitive service".

Subsection (a)(2) preserves the exception stated in former section 638 modified to recognize the several statutory exceptions to this exception that have been enacted. The language of former section 638 relative to examination is codified in sections 3304(b) and 3361. The reference to veterans' preference is omitted because the statute referred to, R.S. §1754, was superseded by sections 3 and 21 of the Act of June 18, 1929, ch. 28, 46 Stat. 21. Section 3 of the Act of June 18, 1929, was superseded by the Act of June 27, 1944, ch. 287, 58 Stat. 387, as amended, which is carried into this title. Rights preserved by section 18 of the Act of June 27, 1944, are further preserved by technical section 8. The exception for laborers and workmen was superseded by the Act of Nov. 26, 1940.

Subsection (b) is added because of the provisions in section 3311 of title 39.

Subsection (c) is supplied for conformity inasmuch as the terms are coextensive by definition.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Amendments

1978—Subsec. (a)(1)(C). Pub. L. 95–454 added cl. (C).

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415 of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

§2103. The excepted service

(a) For the purpose of this title, the "excepted service" consists of those civil service positions which are not in the competitive service or the Senior Executive Service.

(b) As used in other Acts of Congress, "unclassified civil service" or "unclassified service" means the "excepted service".

Amendments

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415 of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

§2104. Officer

(a) For the purpose of this title, "officer", except as otherwise provided by this section or when specifically modified, means a justice or judge of the United States and an individual who is—

(1) required by law to be appointed in the civil service by one of the following acting in an official capacity—

(A) the President;

(B) a court of the United States;

(C) the head of an Executive agency; or

(D) the Secretary of a military department;

(2) engaged in the performance of a Federal function under authority of law or an Executive act; and

(3) subject to the supervision of an authority named by paragraph (1) of this section, or the Judicial Conference of the United States, while engaged in the performance of the duties of his office.

(b) Except as otherwise provided by law, an officer of the United States Postal Service or of the Postal Regulatory Commission is deemed not an officer for purposes of this title.

Effective Date of 1970 Amendment

Amendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note preceding section 101 of Title 39, Postal Service.

§2105. Employee

(a) For the purpose of this title, "employee", except as otherwise provided by this section or when specifically modified, means an officer and an individual who is—

(1) appointed in the civil service by one of the following acting in an official capacity—

(A) the President;

(B) a Member or Members of Congress, or the Congress;

(C) a member of a uniformed service;

(D) an individual who is an employee under this section;

(E) the head of a Government controlled corporation; or

(F) an adjutant general designated by the Secretary concerned under section 709(c) of title 32;

(2) engaged in the performance of a Federal function under authority of law or an Executive act; and

(3) subject to the supervision of an individual named by paragraph (1) of this subsection while engaged in the performance of the duties of his position.

(b) An individual who is employed at the United States Naval Academy in the midshipmen's laundry, the midshipmen's tailor shop, the midshipmen's cobbler and barber shops, and the midshipmen's store, except an individual employed by the Academy dairy (if any), and whose employment in such a position began before October 1, 1996, and has been uninterrupted in such a position since that date is deemed an employee.

(c) An employee paid from nonappropriated funds of the Army and Air Force Exchange Service, Navy Ships Stores Program, Navy exchanges, Marine Corps exchanges, Coast Guard exchanges, and other instrumentalities of the United States under the jurisdiction of the armed forces conducted for the comfort, pleasure, contentment, and mental and physical improvement of personnel of the armed forces is deemed not an employee for the purpose of—

(1) laws administered by the Office of Personnel Management, except—

(A) section 7204;

(B) as otherwise specifically provided in this title;

(C) the Fair Labor Standards Act of 1938;

(D) for the purpose of entering into an interchange agreement to provide for the noncompetitive movement of employees between such instrumentalities and the competitive service; or

(E) subchapter V of chapter 63, which shall be applied so as to construe references to benefit programs to refer to applicable programs for employees paid from nonappropriated funds; or

(2) subchapter I of chapter 81, chapter 84 (except to the extent specifically provided therein), and section 7902 of this title.

This subsection does not affect the status of these nonappropriated fund activities as Federal instrumentalities.

(d) A Reserve of the armed forces who is not on active duty or who is on active duty for training is deemed not an employee or an individual holding an office of trust or profit or discharging an official function under or in connection with the United States because of his appointment, oath, or status, or any duties or functions performed or pay or allowances received in that capacity.

(e) Except as otherwise provided by law, an employee of the United States Postal Service or of the Postal Regulatory Commission is deemed not an employee for purposes of this title.

(f) For purposes of sections 1212, 1213, 1214, 1215, 1216, 1221, 1222, 2302, and 7701, employees appointed under chapter 73 or 74 of title 38 shall be employees.

Subsection (a) is supplied to avoid the necessity of defining "employee" each time it appears in this title. The subsection is based on a definition worked out independently by the Civil Service Commission and the Department of Labor and in use by both for more than a decade.

In subsection (b), the provisions of the source statutes which relate to credit for prior service and diminution of pay are executed, or, insofar as to be executed preserved by technical section 8.

In subsection (d), the words "officer or" are omitted as included within "employee".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

References in Text

The Fair Labor Standards Act of 1938, referred to in subsec. (c)(1)(C), is act June 25, 1938, ch. 676, 52 Stat. 1060, as amended, which is classified generally to chapter 8 (§201 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see section 201 of Title 29 and Tables.

1996—Subsec. (b). Pub. L. 104–201 inserted "who is" after "An individual" and "and whose employment in such a position began before October 1, 1996, and has been uninterrupted in such a position since that date" after "Academy dairy,".

1994—Subsec. (f). Pub. L. 103–424 added subsec. (f).

1993—Subsec. (c)(1)(E). Pub. L. 103–3 added subpar. (E).

1990—Subsec. (c)(1). Pub. L. 101–508, §7202(b)(1), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "laws (other than subchapter IV of chapter 53 of this title, subchapter III of chapter 83 of this title to the extent provided in section 8332(b)(16) of this title, and sections 5550 and 7204 of this title) administered by the Office of Personnel Management; or".

1978—Subsec. (c)(1). Pub. L. 95–454 substituted "7204" for "7154", and "Office of Personnel Management" for "Civil Service Commission". Amendments by section 703(c)(1) and (c)(2) of Pub. L. 95–454 appear to have been inadvertently reversed. Subsec. (c)(1) purported to amend subsec. (c)(1) of this section, and subsec. (c)(2) purported to amend section 3302(2) of this title. However, the amendments specified by Pub. L. 95–454, §703(c)(1) and (2), were impossible to execute literally. Thus, the amendment by Pub. L. 95–454, §703(c)(2) was executed to this section, and the amendment by section 703(c)(1) was executed to section 3302(2) of this title as the probable intent of Congress.

Effective Date of 1990 Amendment

"(1) The amendments made by this section [amending this section and sections 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8347, 8401, 8461, and 8901 of this title] shall apply with respect to any individual who, on or after January 1, 1987—

"(A) moves without a break in service of more than 3 days from employment in a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard that is described in section 2105(c) of title 5, United States Code, to employment in the Department of Defense or the Coast Guard, respectively, that is not described in such section 2105(c); or

"(B) moves without a break in service from employment in the Department of Defense or the Coast Guard that is not described in such section 2105(c) to employment in a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard, respectively, that is described in such section 2105(c).

"(2) The Secretary of Defense, the Secretary of Transportation, the Director of the Office of Personnel Management, and the Executive Director of the Federal Retirement Thrift Investment Board, as applicable, shall take such actions as may be practicable to ensure that each individual who has moved as described under paragraph (1) on or after January 1, 1987, and before the date of enactment of this Act [Nov. 5, 1990], receives the benefit of the amendments made by this section as if such amendments had been in effect at the time such individual so moved. Each such individual who wishes to make an election of retirement coverage under the amendments made by subsection (j) or (k) of this section [amending sections 8331, 8347, 8401, and 8461 of this title] shall complete such election within 180 days after the date of enactment of this Act."

Effective Date of 1986 Amendment

Amendment by Pub. L. 99–335 effective Jan. 1, 1987, see section 702(a) of Pub. L. 99–335, set out as an Effective Date note under section 8401 of this title.

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Effective Date of 1972 Amendment

Amendment by Pub. L. 92–392 effective on first day of first applicable pay period beginning on or after 90th day after Aug. 19, 1972, see section 15(a) of Pub. L. 92–392, set out as an Effective Date note under section 5341 of this title.

Effective Date of 1970 Amendment

Amendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note preceding section 101 of Title 39, Postal Service.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–486 effective Jan. 1, 1968, except that no deductions or withholding from salary which result therefrom shall commence before the first day of the first pay period that begins on or after Jan. 1, 1968, see section 11 of Pub. L. 90–486, set out as a note under section 709 of Title 32, National Guard.

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

Treatment of Individuals Electing To Remain Subject to Their Former Retirement System

"(1) For the purpose of this section [amending this section and sections 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8347, 8401, 8461, and 8901 of this title and enacting provisions set out as notes under this section and section 2101 of this title], the term 'nonappropriated fund instrumentality' means a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard, described in section 2105(c) of title 5, United States Code.

"(2)(A) If an individual makes an election under section 8347(q)(1) of title 5, United States Code, to remain covered by subchapter III of chapter 83 of such title, any nonappropriated fund instrumentality thereafter employing such individual shall deduct from such individual's pay and contribute to the Thrift Savings Fund such sums as are required for such individual in accordance with section 8351 of such title.

"(B) Notwithstanding subsection (a) or (b) of section 8432 of title 5, United States Code, any individual who, as of the date of enactment of this Act [Nov. 5, 1990], becomes eligible to make an election under section 8347(q)(1) of such title may, within 30 days after such individual makes an election thereunder in accordance with subsection (m)(2) [set out as a note above], make any election described in section 8432(b)(1)(A) of such title.

"(3)(A) If an individual makes an election under section 8461(n)(1) of title 5, United States Code, to remain covered by chapter 84 of such title, any nonappropriated fund instrumentality thereafter employing such individual shall deduct from such individual's pay and shall contribute to the Thrift Savings Fund the funds deducted, together with such other sums as are required for such individual under subchapter III of such chapter.

"(B) Notwithstanding subsection (a) or (b) of section 8432 of title 5, United States Code, any individual who, as of the date of enactment of this Act, becomes eligible to make an election under section 8461(n)(1) of such title may, within 30 days after such individual makes an election thereunder in accordance with subsection (m)(2), make any election described in section 8432(b)(1)(A) of such title.

"(4) If an individual makes an election under section 8347(q)(2) or 8461(n)(2) of title 5, United States Code, to remain covered by a retirement system established for employees described in section 2105(c) of such title, any Government agency thereafter employing such individual shall, in lieu of any deductions or contributions for which it would otherwise be responsible with respect to such individual under chapter 83 or 84 of such title, make such deductions from pay and such contributions as would be required (under the retirement system for nonappropriated fund employees involved) if it were a nonappropriated fund instrumentality. Any such deductions and contributions shall be remitted to the Department of Defense or the Coast Guard, as applicable, for transmission to the appropriate retirement system."

[Amendment by Pub. L. 102–378 to section 7202(n) of Pub. L. 101–508, set out above, effective Nov. 5, 1990, see section 9(b)(6) of Pub. L. 102–378, set out as an Effective Date of 1992 Amendment note under section 6303 of this title.]

Prohibition of Decrease in Basic Pay Rate of Employees of Nonappropriated Fund Instrumentalities

Amendments by Pub. L. 92–392 not to decrease basic pay rate of subsec. (c) employees in service before effective date of the amendments as to such employees, see section 9(a)(2) of Pub. L. 92–392, set out as a note under section 5343 of this title.

§2106. Member of Congress

For the purpose of this title, "Member of Congress" means the Vice President, a member of the Senate or the House of Representatives, a Delegate to the House of Representatives, and the Resident Commissioner from Puerto Rico.

Paragraph (6), relating to Official Reporters of Debates of the Senate and their employees, is eliminated as unnecessary on authority of the act of July 27, 1965 (2 U.S.C. 126–1). Pursuant to that act, the Official Reporters and their employees became employees of the Senate; accordingly, they are now included within the definition of "Congressional employee" under paragraph (1).

In paragraph (8), based on the act of September 26, 1966 (5 App. U.S.C. 2251(c)), the word "officers" is omitted as included in "employees," and the words "United States" preceding the words "Botanic Garden" are omitted as unnecessary.

Effective Date of 2010 Amendment

Pub. L. 111–145, §7(d), Mar. 4, 2010, 124 Stat. 56, provided that: "The amendments made by this section [amending this section and sections 5515, 5531, 5533, and 5537 of this title] shall take effect as though enacted as part of section 1018 of the Legislative Branch Appropriations Act, 2003 (2 U.S.C. 1907)."

Effective Date of 2008 Amendment

Amendment by Pub. L. 110–437 effective first day of first pay period (applicable to employees transferred under section 2241 of Title 2, The Congress) on or after 30 days after Oct. 20, 2008, see section 422(d) of Pub. L. 110–437, set out as a note under section 1301 of Title 2.

Effective Date of 1970 Amendment

Amendment by Pub. L. 91–510 effective immediately prior to noon on June. 3, 1971, see section 601(1) of Pub. L. 91–510, set out as a note under section 4301 of Title 2, The Congress.

§2108. Veteran; disabled veteran; preference eligible

For the purpose of this title—

(1) "veteran" means an individual who—

(A) served on active duty in the armed forces during a war, in a campaign or expedition for which a campaign badge has been authorized, or during the period beginning April 28, 1952, and ending July 1, 1955;

(B) served on active duty as defined by section 101(21) of title 38 at any time in the armed forces for a period of more than 180 consecutive days any part of which occurred after January 31, 1955, and before October 15, 1976, not including service under section 12103(d) of title 10 pursuant to an enlistment in the Army National Guard or the Air National Guard or as a Reserve for service in the Army Reserve, Navy Reserve, Air Force Reserve, Marine Corps Reserve, or Coast Guard Reserve;

(C) served on active duty as defined by section 101(21) of title 38 in the armed forces during the period beginning on August 2, 1990, and ending on January 2, 1992; or

(D) served on active duty as defined by section 101(21) of title 38 at any time in the armed forces for a period of more than 180 consecutive days any part of which occurred during the period beginning on September 11, 2001, and ending on the date prescribed by Presidential proclamation or by law as the last date of Operation Iraqi Freedom;

and, except as provided under section 2108a, who has been discharged or released from active duty in the armed forces under honorable conditions;

(2) "disabled veteran" means an individual who has served on active duty in the armed forces, (except as provided under section 2108a) has been separated therefrom under honorable conditions, and has established the present existence of a service-connected disability or is receiving compensation, disability retirement benefits, or pension because of a public statute administered by the Department of Veterans Affairs or a military department;

(3) "preference eligible" means, except as provided in paragraph (4) of this section or section 2108a(c)—

(A) a veteran as defined by paragraph (1)(A) of this section;

(B) a veteran as defined by paragraph (1)(B), (C), or (D) of this section;

(C) a disabled veteran;

(D) the unmarried widow or widower of a veteran as defined by paragraph (1)(A) of this section;

(E) the wife or husband of a service-connected disabled veteran if the veteran has been unable to qualify for any appointment in the civil service or in the government of the District of Columbia;

(F) the parent of an individual who lost his or her life under honorable conditions while serving in the armed forces during a period named by paragraph (1)(A) of this section, if—

(i) the spouse of that parent is totally and permanently disabled; or

(ii) that parent, when preference is claimed, is unmarried or, if married, legally separated from his or her spouse;

(G) the parent of a service-connected permanently and totally disabled veteran, if—

(i) the spouse of that parent is totally and permanently disabled; or

(ii) that parent, when preference is claimed, is unmarried or, if married, legally separated from his or her spouse; and

(H) a veteran who was discharged or released from a period of active duty by reason of a sole survivorship discharge (as that term is defined in section 1174(i) of title 10);

but does not include applicants for, or members of, the Senior Executive Service, the Defense Intelligence Senior Executive Service, the Senior Cryptologic Executive Service, or the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service;

(4) except for the purposes of chapters 43 and 75 of this title, "preference eligible" does not include a retired member of the armed forces unless—

(A) the individual is a disabled veteran; or

(B) the individual retired below the rank of major or its equivalent; and

(5) "retired member of the armed forces" means a member or former member of the armed forces who is entitled, under statute, to retired, retirement, or retainer pay on account of service as a member.

In paragraph (2), the words "a military department" are substituted for "the War Department or Navy Department" (appearing in section 2 of the Act of June 27, 1944) because of the definition of "military department" in section 102. The Department of War was designated the Department of the Army by the Act of July 26, 1947, ch. 343, §205, 61 Stat. 501. "Department of the Air Force" is included on authority of the Act of July 26, 1947, ch. 343, §207 (a), (f), 61 Stat. 502.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Amendments

2015—Par. (3)(F), (G). Pub. L. 114–62 added subpars. (F) and (G) and struck out former subpars. (F) and (G) which included in the definition of "preference eligible" certain mothers of individuals who lost their lives under honorable conditions in the armed forces and certain mothers of service-connected permanently and totally disabled veterans.

1997—Par. (1)(B). Pub. L. 105–85, §1102(c), substituted "October 15, 1976," for "the date of enactment of the Veterans' Education and Employment Assistance Act of 1976," and "12103(d) of title 10" for "511(d) of title 10".

Par. (5). Pub. L. 95–454, §401(d), inserted "; but does not include applicants for, or members of, the Senior Executive Service" before the period at end.

1976—Par. (1)(B). Pub. L. 94–502 substituted "any part of which occurred after January 31, 1955, and before the date of enactment of the Veterans' Education and Employment Assistance Act of 1976," for "after January 31, 1955,".

Effective Date of 2008 Amendment

"(a) Retroactive Effective Date.—Except as provided in subsection (b) and section 9 [amending section 685 of Title 26, Internal Revenue Code, and enacting provisions set out as a note under section 685 of Title 26], this Act [amending this section, section 8521 of this title, sections 1145, 1146, and 1174 of Title 10, Armed Forces, section 685 of Title 26, section 303a of Title 37, Pay and Allowances of the Uniformed Services, and sections 3011, 3012, 3702, and 4211 of Title 38, Veterans' Benefits, and enacting provisions set out as notes under section 101 of Title 10 and section 685 of Title 26] and the amendments made by this Act shall apply with respect to any sole survivorship discharge granted after September 11, 2001.

"(b) Date of Enactment Effective Date for Certain Amendments.—The amendments made by sections 4, 7, and 8 [amending this section and section 8521 of this title and section 1145 of Title 10] shall apply with respect to any sole survivorship discharge granted after the date of the enactment of this Act [Aug. 29, 2008].

"(c) Sole Survivorship Discharge Defined.—In this section, the term 'sole survivorship discharge' means the separation of a member from the Armed Forces, at the request of the member, pursuant to the Department of Defense policy permitting the early separation of a member who is the only surviving child in a family in which—

"(1) the father or mother or one or more siblings—

"(A) served in the Armed Forces; and

"(B) was killed, died as a result of wounds, accident, or disease, is in a captured or missing in action status, or is permanently 100 percent disabled or hospitalized on a continuing basis (and is not employed gainfully because of the disability or hospitalization); and

"(2) the death, status, or disability did not result from the intentional misconduct or willful neglect of the parent or sibling and was not incurred during a period of unauthorized absence."

Effective Date of 1981 Amendment

Amendment by Pub. L. 97–89 effective Oct. 1, 1981, see section 806 of Pub. L. 97–89, set out as an Effective Date note under section 1621 of Title 10, Armed Forces.

Effective Date of 1978 Amendment

Amendment by section 401(d) of Pub. L. 95–454 effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415 of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–623 effective Sept. 11, 1967, for all purposes, see section 6 of Pub. L. 90–623, set out as a note under section 5334 of this title.

Savings Provision

Pub. L. 109–163, div. A, title XI, §1112(b), Jan. 6, 2006, 119 Stat. 3451, provided that: "Nothing in the amendment made by subsection (a) [amending this section] may be construed to affect a determination made before the date of enactment of this Act [Jan. 6, 2006] that an individual is a preference eligible (as defined in section 2108(3) of title 5, United States Code)."

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

(1) In general.—Except as provided under paragraph (3),1 an individual shall be treated as a veteran defined under section 2108(1) for purposes of making an appointment in the competitive service, if the individual—

(A) meets the definition of a veteran under section 2108(1), except for the requirement that the individual has been discharged or released from active duty in the armed forces under honorable conditions; and

(B) submits a certification described under paragraph (2) to the Federal officer making the appointment.

(2) Certification.—A certification referred to under paragraph (1) is a certification that the individual is expected to be discharged or released from active duty in the armed forces under honorable conditions not later than 120 days after the date of the submission of the certification.

(b) Disabled Veteran.—

(1) In general.—Except as provided under paragraph (3),1 an individual shall be treated as a disabled veteran defined under section 2108(2) for purposes of making an appointment in the competitive service, if the individual—

(A) meets the definition of a disabled veteran under section 2108(2), except for the requirement that the individual has been separated from active duty in the armed forces under honorable conditions; and

(B) submits a certification described under paragraph (2) to the Federal officer making the appointment.

(2) Certification.—A certification referred to under paragraph (1) is a certification that the individual is expected to be separated from active duty in the armed forces under honorable conditions not later than 120 days after the date of the submission of the certification.

(c) Preference Eligible.—Subsections (a) and (b) shall apply with respect to determining whether an individual is a preference eligible under section 2108(3) for purposes of making an appointment in the competitive service.

§2109. Air traffic controller; Secretary

For the purpose of this title—

(1) "air traffic controller" or "controller" means a civilian employee of the Department of Transportation or the Department of Defense who, in an air traffic control facility or flight service station facility—

(A) is actively engaged—

(i) in the separation and control of air traffic; or

(ii) in providing preflight, inflight, or airport advisory service to aircraft operators; or

(B) is the immediate supervisor of any employee described in subparagraph (A); and

(2) "Secretary", when used in connection with "air traffic controller" or "controller", means the Secretary of Transportation with respect to controllers in the Department of Transportation, and the Secretary of Defense with respect to controllers in the Department of Defense.

Amendments

1986—Par. (1). Pub. L. 99–335 amended par. (1) generally including within term "air traffic controller" or "controller" references to a flight service station facility and to employment providing preflight, inflight, or airport advisory service to aircraft operators and striking out provision that regulations prescribed by the Secretary be used in determining who is an air traffic controller.

1980—Pub. L. 96–347 substituted "controller; Secretary" for "controller" in section catchline, and in text included employees of the Department of Defense within the meaning of air traffic controller or controller and defined "Secretary" to mean Secretary of Transportation with respect to controllers in the Department of Transportation and Secretary of Defense with respect to controllers in the Department of Defense.

Effective Date of 1986 Amendment

Amendment by Pub. L. 99–335 effective Jan. 1, 1987, see section 702(a) of Pub. L. 99–335, set out as an Effective Date note under section 8401 of this title.

Effective Date of 1980 Amendment

Pub. L. 96–347, §3, Sept. 12, 1980, 94 Stat. 1151, provided that: "This Act [amending this section and sections 3307, 3381 to 3385, and 8335 of this title and enacting provisions set out as a note under section 8335 of this title] shall take effect on the later of—

"(1) October 1, 1980, or

"(2) the ninetieth day after the date of the enactment of this Act [Sept. 12, 1980]."

Effective Date

Section effective on 90th day after May 16, 1972, see, section 10 of Pub. L. 92–297, set out as a note under section 3381 of this title.

CHAPTER 23—MERIT SYSTEM PRINCIPLES

Sec.

2301.

Merit system principles.

2302.

Prohibited personnel practices.

2303.

Prohibited personnel practices in the Federal Bureau of Investigation.

§2301. Merit system principles

(b) Federal personnel management should be implemented consistent with the following merit system principles:

(1) Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity.

(2) All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.

(3) Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance.

(4) All employees should maintain high standards of integrity, conduct, and concern for the public interest.

(5) The Federal work force should be used efficiently and effectively.

(6) Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.

(7) Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance.

(8) Employees should be—

(A) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes, and

(B) prohibited from using their official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for election.

(9) Employees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences—

(A) a violation of any law, rule, or regulation, or

(B) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

(c) In administering the provisions of this chapter—

(1) with respect to any agency (as defined in section 2302(a)(2)(C) of this title), the President shall, pursuant to the authority otherwise available under this title, take any action, including the issuance of rules, regulations, or directives; and

(2) with respect to any entity in the executive branch which is not such an agency or part of such an agency, the head of such entity shall, pursuant to authority otherwise available, take any action, including the issuance of rules, regulations, or directives;

which is consistent with the provisions of this title and which the President or the head, as the case may be, determines is necessary to ensure that personnel management is based on and embodies the merit system principles.

Amendments

1990—Subsec. (a). Pub. L. 101–474 redesignated par. (3) as (2) and struck out former par. (2) which provided that this section is applicable to Administrative Office of United States Courts.

Change of Name

"Government Publishing Office" substituted for "Government Printing Office" in subsec. (a)(2) on authority of section 1301(b) of Pub. L. 113–235, set out as a note preceding section 301 of Title 44, Public Printing and Documents.

Effective Date

Chapter effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title.

Training for Supervisors

Pub. L. 115–73, title I, §106, Oct. 26, 2017, 131 Stat. 1238, provided that: "In consultation with the Special Counsel and the Inspector General of the agency (or senior ethics official of the agency for an agency without an Inspector General), the head of each agency shall provide training regarding how to respond to complaints alleging a violation of whistleblower protections (as defined in [former] section 2307 of title 5, United States Code, as added by section 107) available to employees of the agency—

"(1) to employees appointed to supervisory positions in the agency who have not previously served as a supervisor; and

"(2) on an annual basis, to all employees of the agency serving in a supervisory position."

[For definitions of "agency" and "employee" as used in section 106 of Pub. L. 115–73, set out above, see section 101 of Pub. L. 115–73, set out as a note under section 1212 of this title.]

Notification and Federal Employee Antidiscrimination and Retaliation

"SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

"(a) Short Title.—This Act may be cited as the 'Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002'.

"(b) Table of Contents.—[Omitted.]

"TITLE I—GENERAL PROVISIONS

"SEC. 101. FINDINGS.

"Congress finds that—

"(1) Federal agencies cannot be run effectively if those agencies practice or tolerate discrimination;

"(2) Congress has heard testimony from individuals, including representatives of the National Association for the Advancement of Colored People and the American Federation of Government Employees, that point to chronic problems of discrimination and retaliation against Federal employees;

"(3) in August 2000, a jury found that the Environmental Protection Agency had discriminated against a senior social scientist, and awarded that scientist $600,000;

"(4) in October 2000, an Occupational Safety and Health Administration investigation found that the Environmental Protection Agency had retaliated against a senior scientist for disagreeing with that agency on a matter of science and for helping Congress to carry out its oversight responsibilities;

"(5) there have been several recent class action suits based on discrimination brought against Federal agencies, including the Federal Bureau of Investigation, the Bureau of Alcohol, Tobacco, and Firearms, the Drug Enforcement Administration, the Immigration and Naturalization Service, the United States Marshals Service, the Department of Agriculture, the United States Information Agency, and the Social Security Administration;

"(6) notifying Federal employees of their rights under discrimination and whistleblower laws should increase Federal agency compliance with the law;

"(7) requiring annual reports to Congress on the number and severity of discrimination and whistleblower cases brought against each Federal agency should enable Congress to improve its oversight over compliance by agencies with the law; and

"(8) requiring Federal agencies to pay for any discrimination or whistleblower judgment, award, or settlement should improve agency accountability with respect to discrimination and whistleblower laws.

"SEC. 102. SENSE OF CONGRESS.

"It is the sense of Congress that—

"(1) Federal agencies should not retaliate for court judgments or settlements relating to discrimination and whistleblower laws by targeting the claimant or other employees with reductions in compensation, benefits, or workforce to pay for such judgments or settlements;

"(2) the mission of the Federal agency and the employment security of employees who are blameless in a whistleblower incident should not be compromised;

"(3) Federal agencies should not use a reduction in force or furloughs as means of funding a reimbursement under this Act;

"(4)(A) accountability in the enforcement of employee rights is not furthered by terminating—

"(i) the employment of other employees; or

"(ii) the benefits to which those employees are entitled through statute or contract; and

"(B) this Act is not intended to authorize those actions;

"(5)(A) nor is accountability furthered if Federal agencies react to the increased accountability under this Act by taking unfounded disciplinary actions against managers or by violating the procedural rights of managers who have been accused of discrimination; and

"(B) Federal agencies should ensure that managers have adequate training in the management of a diverse workforce and in dispute resolution and other essential communication skills; and

"(6)(A) Federal agencies are expected to reimburse the General Fund of the Treasury within a reasonable time under this Act; and

"(B) a Federal agency, particularly if the amount of reimbursement under this Act is large relative to annual appropriations for that agency, may need to extend reimbursement over several years in order to avoid—

"(i) reductions in force;

"(ii) furloughs;

"(iii) other reductions in compensation or benefits for the workforce of the agency; or

"(iv) an adverse effect on the mission of the agency.

"SEC. 103. DEFINITIONS.

"For purposes of this Act—

"(1) the term 'applicant for Federal employment' means an individual applying for employment in or under a Federal agency;

"(2) the term 'basis of alleged discrimination' shall have the meaning given such term under section 303;

"(3) the term 'Federal agency' means an Executive agency (as defined in section 105 of title 5, United States Code), the United States Postal Service, or the Postal Regulatory Commission;

"(4) the term 'Federal employee' means an individual employed in or under a Federal agency;

"(5) the term 'former Federal employee' means an individual formerly employed in or under a Federal agency; and

"(6) the term 'issue of alleged discrimination' shall have the meaning given such term under section 303.

"SEC. 104. EFFECTIVE DATE.

"This Act and the amendments made by this Act shall take effect on the 1st day of the 1st fiscal year beginning more than 180 days after the date of the enactment of this Act [May 15, 2002].

"TITLE II—FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION

"SEC. 201. REIMBURSEMENT REQUIREMENT.

"(a) Applicability.—This section applies with respect to any payment made in accordance with section 2414, 2517, 2672, or 2677 of title 28, United States Code, and under section 1304 of title 31, United States Code (relating to judgments, awards, and compromise settlements) to any Federal employee, former Federal employee, or applicant for Federal employment, in connection with any proceeding brought by or on behalf of such employee, former employee, or applicant under—

"(1) any provision of law cited in subsection (c); or

"(2) any other provision of law which prohibits any form of discrimination, as identified under rules issued under section 204.

"(b) Requirement.—An amount equal to the amount of each payment described in subsection (a) shall be reimbursed to the fund described in section 1304 of title 31, United States Code, out of any appropriation, fund, or other account (excluding any part of such appropriation, of such fund, or of such account available for the enforcement of any Federal law) available for operating expenses of the Federal agency to which the discriminatory conduct involved is attributable as determined under section 204.

"(c) Scope.—The provisions of law cited in this subsection are the following:

"(1) Section 2302(b) of title 5, United States Code, as applied to discriminatory conduct described in paragraphs (1) and (8), or described in paragraph (9) of such section as applied to discriminatory conduct described in paragraphs (1) and (8), of such section.

"(2) The provisions of law specified in section 2302(d) of title 5, United States Code.

"SEC. 202. NOTIFICATION REQUIREMENT.

"(a) In General.—Written notification of the rights and protections available to Federal employees, former Federal employees, and applicants for Federal employment (as the case may be) in connection with the respective provisions of law covered by paragraphs (1) and (2) of section 201(a) shall be provided to such employees, former employees, and applicants—

"(1) in accordance with otherwise applicable provisions of law; or

"(2) if, or to the extent that, no such notification would otherwise be required, in such time, form, and manner as shall under section 204 be required in order to carry out the requirements of this section.

"(b) Posting on the Internet.—Any written notification under this section shall include, but not be limited to, the posting of the information required under paragraph (1) or (2) (as applicable) of subsection (a) on the Internet site of the Federal agency involved.

"(c) Employee Training.—Each Federal agency shall provide to the employees of such agency training regarding the rights and remedies applicable to such employees under the laws cited in section 201(c).

"SEC. 203. REPORTING REQUIREMENT.

"(a) Annual Report.—Subject to subsection (b), not later than 180 days after the end of each fiscal year, each Federal agency shall submit to the Speaker of the House of Representatives, the President pro tempore of the Senate, the Committee on Governmental Affairs [now Committee on Homeland Security and Governmental Affairs] of the Senate, the Committee on Government Reform [now Committee on Oversight and Reform] of the House of Representatives, each committee of Congress with jurisdiction relating to the agency, the Equal Employment Opportunity Commission, and the Attorney General an annual report which shall include, with respect to the fiscal year—

"(1) the number of cases arising under each of the respective provisions of law covered by paragraphs (1) and (2) of section 201(a) in which discrimination on the part of such agency was alleged;

"(2) the status or disposition of cases described in paragraph (1);

"(3) the amount of money required to be reimbursed by such agency under section 201 in connection with each of such cases, separately identifying the aggregate amount of such reimbursements attributable to the payment of attorneys' fees, if any;

"(4) the number of employees disciplined for discrimination, retaliation, harassment, or any other infraction of any provision of law referred to in paragraph (1);

"(5) the final year-end data posted under section 301(c)(1)(B) for such fiscal year (without regard to section 301(c)(2));

"(6) a detailed description of—

"(A) the policy implemented by that agency relating to appropriate disciplinary actions against a Federal employee who—

"(i) discriminated against any individual in violation of any of the laws cited under section 201(a)(1) or (2); or

"(ii) committed another prohibited personnel practice that was revealed in the investigation of a complaint alleging a violation of any of the laws cited under section 201(a)(1) or (2); and

"(B) with respect to each of such laws, the number of employees who are disciplined in accordance with such policy and the specific nature of the disciplinary action taken;

"(7) an analysis of the information described under paragraphs (1) through (6) (in conjunction with data provided to the Equal Employment Opportunity Commission in compliance with part 1614 of title 29 of the Code of Federal Regulations) including—

"(A) an examination of trends;

"(B) causal analysis;

"(C) practical knowledge gained through experience; and

"(D) any actions planned or taken to improve complaint or civil rights programs of the agency; and

"(8) any adjustment (to the extent the adjustment can be ascertained in the budget of the agency) to comply with the requirements under section 201.

"(b) First Report.—The 1st report submitted under subsection (a) shall include for each item under subsection (a) data for each of the 5 immediately preceding fiscal years (or, if data are not available for all 5 fiscal years, for each of those 5 fiscal years for which data are available).

"SEC. 204. RULES AND GUIDELINES.

"(a) Issuance of Rules and Guidelines.—The President (or the designee of the President) shall issue—

"(1) rules to carry out this title;

"(2) rules to require that a comprehensive study be conducted in the executive branch to determine the best practices relating to the appropriate disciplinary actions against Federal employees who commit the actions described under clauses (i) and (ii) of section 203(a)(6)(A); and

"(3) based on the results of such study, advisory guidelines incorporating best practices that Federal agencies may follow to take such actions against such employees.

"(b) Agency Notification Regarding Implementation of Guidelines.—Not later than 30 days after the issuance of guidelines under subsection (a), each Federal agency shall submit to the Speaker of the House of Representatives, the President pro tempore of the Senate, the Equal Employment Opportunity Commission, and the Attorney General a written statement specifying in detail—

"(1) whether such agency has adopted and will fully follow such guidelines;

"(2) if such agency has not adopted such guidelines; the reasons for the failure to adopt such guidelines; and

"(3) if such agency will not fully follow such guidelines, the reasons for the decision not to fully follow such guidelines and an explanation of the extent to which such agency will not follow such guidelines.

"SEC. 205. CLARIFICATION OF REMEDIES.

"Consistent with Federal law, nothing in this title shall prevent any Federal employee, former Federal employee, or applicant for Federal employment from exercising any right otherwise available under the laws of the United States.

"SEC. 206. STUDIES BY GENERAL ACCOUNTING OFFICE [now GOVERNMENT ACCOUNTABILITY OFFICE] ON EXHAUSTION OF ADMINISTRATIVE REMEDIES AND ON ASCERTAINMENT OF CERTAIN DEPARTMENT OF JUSTICE COSTS.

"(a) Study on Exhaustion of Administrative Remedies.—

"(1) Study.—

"(A) In general.—Not later than 180 days after the date of enactment of this Act [May 15, 2002], the General Accounting Office [now Government Accountability Office] shall conduct a study relating to the effects of eliminating the requirement that Federal employees aggrieved by violations of any of the laws specified under section 201(c) exhaust administrative remedies before filing complaints with the Equal Employment Opportunity Commission.

"(B) Contents.—The study shall include a detailed summary of matters investigated, information collected, and conclusions formulated that lead to determinations of how the elimination of such requirement will—

"(i) expedite handling of allegations of such violations within Federal agencies and will streamline the complaint-filing process;

"(ii) affect the workload of the Commission;

"(iii) affect established alternative dispute resolution procedures in such agencies; and

"(iv) affect any other matters determined by the General Accounting Office [now Government Accountability Office] to be appropriate for consideration.

"(2) Report.—Not later than 90 days after completion of the study required by paragraph (1), the General Accounting Office [now Government Accountability Office] shall submit to the Speaker of the House of Representatives, the President pro tempore of the Senate, the Equal Employment Opportunity Commission, and the Attorney General a report containing the information required to be included in such study.

"(b) Study on Ascertainment of Certain Costs of the Department of Justice in Defending Discrimination and Whistleblower Cases.—

"(1) Study.—Not later than 180 days after the date of enactment of this Act [May 15, 2002], the General Accounting Office [now Government Accountability Office] shall conduct a study of the methods that could be used for, and the extent of any administrative burden that would be imposed on, the Department of Justice to ascertain the personnel and administrative costs incurred in defending in each case arising from a proceeding identified under section 201(a)(1) and (2).

"(2) Report.—Not later than 90 days after completion of the study required by paragraph (1), the General Accounting Office [now Government Accountability Office] shall submit to the Speaker of the House of Representatives and the President pro tempore of the Senate a report containing the information required to be included in the study.

"(c) Studies on Statutory Effects on Agency Operations.—

"(1) In general.—Not later than 18 months after the date of enactment of this Act [May 15, 2002], the General Accounting Office [now Government Accountability Office] shall conduct—

"(A) a study on the effects of section 201 on the operations of Federal agencies; and

"(B) a study on the effects of section 13 of the Contract Disputes Act of 1978 (41 U.S.C. 612) [now 41 U.S.C. 7108] on the operations of Federal agencies.

"(2) Contents.—Each study under paragraph (1) shall include, with respect to the applicable statutes of the study—

"(A) a summary of the number of cases in which a payment was made in accordance with section 2414, 2517, 2672, or 2677 of title 28, United States Code, and under section 1304 of title 31, United States Code;

"(B) a summary of the length of time Federal agencies used to complete reimbursements of payments described under subparagraph (A); and

"(C) conclusions that assist in making determinations on how the reimbursements of payments described under subparagraph (A) will affect—

"(i) the operations of Federal agencies;

"(ii) funds appropriated on an annual basis;

"(iii) employee relations and other human capital matters;

"(iv) settlements; and

"(v) any other matter determined by the General Accounting Office [now Government Accountability Office] to be appropriate for consideration.

"(3) Reports.—Not later than 90 days after the completion of each study under paragraph (1), the General Accounting Office [now Government Accountability Office] shall submit a report on each study, respectively, to the Speaker of the House of Representatives, the President pro tempore of the Senate, the Committee on Governmental Affairs [now Committee on Homeland Security and Governmental Affairs] of the Senate, the Committee on Government Reform [now Committee on Oversight and Reform] of the House of Representatives, and the Attorney General.

"(d) Study on Administrative and Personnel Costs Incurred by the Department of the Treasury.—

"(1) In general.—Not later than 1 year after the date of enactment of this Act [May 15, 2002], the General Accounting Office [now Government Accountability Office] shall conduct a study on the extent of any administrative and personnel costs incurred by the Department of the Treasury to account for payments made in accordance with section 2414, 2517, 2672, or 2677 of title 28, United States Code, and under section 1304 of title 31, United States Code, as a result of—

"(2) Report.—Not later than 90 days after the completion of the study under paragraph (1), the General Accounting Office [now Government Accountability Office] shall submit a report on the study to the Speaker of the House of Representatives, the President pro tempore of the Senate, the Committee on Governmental Affairs [now Committee on Homeland Security and Governmental Affairs] of the Senate, the Committee on Government Reform [now Committee on Oversight and Reform] of the House of Representatives, and the Attorney General.

"TITLE III—EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATA DISCLOSURE

"SEC. 301. DATA TO BE POSTED BY EMPLOYING FEDERAL AGENCIES.

"(a) In General.—Each Federal agency shall post on its public Web site, in the time, form, and manner prescribed under section 303 (in conformance with the requirements of this section), summary statistical data relating to equal employment opportunity complaints filed with such agency by employees or former employees of, or applicants for employment with, such agency.

"(b) Content Requirements.—The data posted by a Federal agency under this section shall include, for the then current fiscal year, the following:

"(1) The number of complaints filed with such agency in such fiscal year.

"(2) The number of individuals filing those complaints (including as the agent of a class).

"(3) The number of individuals who filed 2 or more of those complaints.

"(4) The number of complaints (described in paragraph (1)) in which each of the various bases of alleged discrimination is alleged.

"(5) The number of complaints (described in paragraph (1)) in which each of the various issues of alleged discrimination is alleged.

"(6) The average length of time, for each step of the process, it is taking such agency to process complaints (taking into account all complaints pending for any length of time in such fiscal year, whether first filed in such fiscal year or earlier). Average times under this paragraph shall be posted—

"(A) for all such complaints,

"(B) for all such complaints in which a hearing before an administrative judge of the Equal Employment Opportunity Commission is not requested, and

"(C) for all such complaints in which a hearing before an administrative judge of the Equal Employment Opportunity Commission is requested.

"(7) The total number of final agency actions rendered in such fiscal year involving a finding of discrimination and, of that number—

"(A) the number and percentage that were rendered without a hearing before an administrative judge of the Equal Employment Opportunity Commission, and

"(B) the number and percentage that were rendered after a hearing before an administrative judge of the Equal Employment Opportunity Commission.

"(8) Of the total number of final agency actions rendered in such fiscal year involving a finding of discrimination—

"(A) the number and percentage involving a finding of discrimination based on each of the respective bases of alleged discrimination, and

"(B) of the number specified under subparagraph (A) for each of the respective bases of alleged discrimination—

"(i) the number and percentage that were rendered without a hearing before an administrative judge of the Equal Employment Opportunity Commission, and

"(ii) the number and percentage that were rendered after a hearing before an administrative judge of the Equal Employment Opportunity Commission.

"(9) Of the total number of final agency actions rendered in such fiscal year involving a finding of discrimination—

"(A) the number and percentage involving a finding of discrimination in connection with each of the respective issues of alleged discrimination, and

"(B) of the number specified under subparagraph (A) for each of the respective issues of alleged discrimination—

"(i) the number and percentage that were rendered without a hearing before an administrative judge of the Equal Employment Opportunity Commission, and

"(ii) the number and percentage that were rendered after a hearing before an administrative judge of the Equal Employment Opportunity Commission.

"(10)(A) Of the total number of complaints pending in such fiscal year (as described in the parenthetical matter in paragraph (6)), the number that were first filed before the start of the then current fiscal year.

"(B) With respect to those pending complaints that were first filed before the start of the then current fiscal year—

"(i) the number of individuals who filed those complaints, and

"(ii) the number of those complaints which are at the various steps of the complaint process.

"(C) Of the total number of complaints pending in such fiscal year (as described in the parenthetical matter in paragraph (6)), the total number of complaints with respect to which the agency violated the requirements of section 1614.106(e)(2) of title 29 of the Code of Federal Regulations (as in effect on July 1, 2000, and amended from time to time) by failing to conduct within 180 days of the filing of such complaints an impartial and appropriate investigation of such complaints.

"(c) Timing and Other Requirements.—

"(1) Current year data.—Data posted under this section for the then current fiscal year shall include both—

"(A) interim year-to-date data, updated quarterly, and

"(B) final year-end data.

"(2) Data for prior years.—The data posted by a Federal agency under this section for a fiscal year (both interim and final) shall include, for each item under subsection (b), such agency's corresponding year-end data for each of the 5 immediately preceding fiscal years (or, if not available for all 5 fiscal years, for however many of those 5 fiscal years for which data are available).

"SEC. 302. DATA TO BE POSTED BY THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.

"(a) In General.—The Equal Employment Opportunity Commission shall post on its public Web site, in the time, form, and manner prescribed under section 303 for purposes of this section, summary statistical data relating to—

"(1) hearings requested before an administrative judge of the Commission on complaints described in section 301, and

"(2) appeals filed with the Commission from final agency actions on complaints described in section 301.

"(b) Specific Requirements.—The data posted under this section shall, with respect to the hearings and appeals described in subsection (a), include summary statistical data corresponding to that described in paragraphs (1) through (10) of section 301(b), and shall be subject to the same timing and other requirements as set forth in section 301(c).

"(c) Coordination.—The data required under this section shall be in addition to the data the Commission is required to post under section 301 as an employing Federal agency.

"SEC. 303. RULES.

"The Equal Employment Opportunity Commission shall issue any rules necessary to carry out this title."

[For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of Title 8, Aliens and Nationality.]

[For transfer of authorities, functions, personnel, and assets of the Bureau of Alcohol, Tobacco and Firearms, including the related functions of the Secretary of the Treasury, to the Department of Justice, see section 531(c) of Title 6, Domestic Security, and section 599A(c)(1) of Title 28, Judiciary and Judicial Procedure.]

[Memorandum of President of the United States, July 8, 2003, 68 F.R. 45155, delegated to Director of Office of Personnel Management authority of President under section 204(a) of Public Law 107–174, set out above.]

§2302. Prohibited personnel practices

(a)(1) For the purpose of this title, "prohibited personnel practice" means any action described in subsection (b).

(2) For the purpose of this section—

(A) "personnel action" means—

(i) an appointment;

(ii) a promotion;

(iii) an action under chapter 75 of this title or other disciplinary or corrective action;

(iv) a detail, transfer, or reassignment;

(v) a reinstatement;

(vi) a restoration;

(vii) a reemployment;

(viii) a performance evaluation under chapter 43 of this title or under title 38;

(ix) a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph;

(x) a decision to order psychiatric testing or examination;

(xi) the implementation or enforcement of any nondisclosure policy, form, or agreement; and

(xii) any other significant change in duties, responsibilities, or working conditions;

with respect to an employee in, or applicant for, a covered position in an agency, and in the case of an alleged prohibited personnel practice described in subsection (b)(8), an employee or applicant for employment in a Government corporation as defined in section 9101 of title 31;

(B) "covered position" means, with respect to any personnel action, any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service, but does not include any position which is, prior to the personnel action—

(i) excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character; or

(ii) excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration;

(C) "agency" means an Executive agency and the Government Publishing Office, but does not include—

(i) a Government corporation, except in the case of an alleged prohibited personnel practice described under subsection (b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D);

(ii)(I) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office; and

(II) as determined by the President, any executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities, provided that the determination be made prior to a personnel action; or

(iii) the Government Accountability Office; and

(D) "disclosure" means a formal or informal communication or transmission, but does not include a communication concerning policy decisions that lawfully exercise discretionary authority unless the employee or applicant providing the disclosure reasonably believes that the disclosure evidences—

(i) any violation of any law, rule, or regulation; or

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—

(1) discriminate for or against any employee or applicant for employment—

(A) on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16);

(B) on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a);

(C) on the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d));

(D) on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791); or

(E) on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation;

(2) solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of—

(A) an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or

(B) an evaluation of the character, loyalty, or suitability of such individual;

(3) coerce the political activity of any person (including the providing of any political contribution or service), or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity;

(4) deceive or willfully obstruct any person with respect to such person's right to compete for employment;

(5) influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment;

(6) grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment;

(7) appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position any individual who is a relative (as defined in section 3110(a)(3) of this title) of such employee if such position is in the agency in which such employee is serving as a public official (as defined in section 3110(a)(2) of this title) or over which such employee exercises jurisdiction or control as such an official;

(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of—

(A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences—

(i) any violation of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,

if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs;

(B) any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences—

(i) any violation (other than a violation of this section) of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or

(C) any disclosure to Congress (including any committee of Congress) by any employee of an agency or applicant for employment at an agency of information described in subparagraph (B) that is—

(i) not classified; or

(ii) if classified—

(I) has been classified by the head of an agency that is not an element of the intelligence community (as defined by section 3 of the National Security Act of 1947 (50 U.S.C. 3003)); and

(9) take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of—

(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation—

(i) with regard to remedying a violation of paragraph (8); or

(ii) other than with regard to remedying a violation of paragraph (8);

(B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii);

(C) cooperating with or disclosing information to the Inspector General (or any other component responsible for internal investigation or review) of an agency, or the Special Counsel, in accordance with applicable provisions of law; or

(D) refusing to obey an order that would require the individual to violate a law, rule, or regulation;

(10) discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others; except that nothing in this paragraph shall prohibit an agency from taking into account in determining suitability or fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District of Columbia, or of the United States;

(11)(A) knowingly take, recommend, or approve any personnel action if the taking of such action would violate a veterans' preference requirement; or

(B) knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a veterans' preference requirement;

(12) take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title;

(13) implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement does not contain the following statement: "These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling."; or

(14) access the medical record of another employee or an applicant for employment as a part of, or otherwise in furtherance of, any conduct described in paragraphs (1) through (13).

This subsection shall not be construed to authorize the withholding of information from Congress or the taking of any personnel action against an employee who discloses information to Congress. For purposes of paragraph (8), (i) any presumption relating to the performance of a duty by an employee whose conduct is the subject of a disclosure as defined under subsection (a)(2)(D) may be rebutted by substantial evidence, and (ii) a determination as to whether an employee or applicant reasonably believes that such employee or applicant has disclosed information that evidences any violation of law, rule, regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety shall be made by determining whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee or applicant could reasonably conclude that the actions of the Government evidence such violations, mismanagement, waste, abuse, or danger.

(c)(1) In this subsection—

(A) the term "new employee" means an individual—

(i) appointed to a position as an employee on or after the date of enactment of this subsection; and

(ii) who has not previously served as an employee; and

(B) the term "whistleblower protections" means the protections against and remedies for a prohibited personnel practice described in paragraph (8) or subparagraph (A)(i), (B), (C), or (D) of paragraph (9) of subsection (b).

(2) The head of each agency shall be responsible for—

(A) preventing prohibited personnel practices;

(B) complying with and enforcing applicable civil service laws, rules, and regulations and other aspects of personnel management; and

(C) ensuring, in consultation with the Special Counsel and the Inspector General of the agency, that employees of the agency are informed of the rights and remedies available to the employees under this chapter and chapter 12, including—

(i) information with respect to whistleblower protections available to new employees during a probationary period;

(ii) the role of the Office of Special Counsel and the Merit Systems Protection Board with respect to whistleblower protections; and

(iii) the means by which, with respect to information that is otherwise required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs, an employee may make a lawful disclosure of the information to—

(I) the Special Counsel;

(II) the Inspector General of an agency;

(III) Congress (including any committee of Congress with respect to information that is not classified or, if classified, has been classified by the head of an agency that is not an element of the intelligence community and does not reveal intelligence sources and methods); or

(IV) another employee of the agency who is designated to receive such a disclosure.

(3) The head of each agency shall ensure that the information described in paragraph (2) is provided to each new employee of the agency not later than 180 days after the date on which the new employee is appointed.

(4) The head of each agency shall make available information regarding whistleblower protections applicable to employees of the agency on the public website of the agency and on any online portal that is made available only to employees of the agency, if such portal exists.

(5) Any employee to whom the head of an agency delegates authority for any aspect of personnel management shall, within the limits of the scope of the delegation, be responsible for the activities described in paragraph (2).

(d) This section shall not be construed to extinguish or lessen any effort to achieve equal employment opportunity through affirmative action or any right or remedy available to any employee or applicant for employment in the civil service under—

(1) section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16), prohibiting discrimination on the basis of race, color, religion, sex, or national origin;

(2) sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a), prohibiting discrimination on the basis of age;

(3) under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)), prohibiting discrimination on the basis of sex;

(4) section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), prohibiting discrimination on the basis of handicapping condition; or

(5) the provisions of any law, rule, or regulation prohibiting discrimination on the basis of marital status or political affiliation.

(e)(1) For the purpose of this section, the term "veterans' preference requirement" means any of the following provisions of law:

(G) Any other provision of law that the Director of the Office of Personnel Management designates in regulations as being a veterans' preference requirement for the purposes of this subsection.

(H) Any regulation prescribed under subsection (b) or (c) of section 1302 and any other regulation that implements a provision of law referred to in any of the preceding subparagraphs.

(2) Notwithstanding any other provision of this title, no authority to order corrective action shall be available in connection with a prohibited personnel practice described in subsection (b)(11). Nothing in this paragraph shall be considered to affect any authority under section 1215 (relating to disciplinary action).

(f)(1) A disclosure shall not be excluded from subsection (b)(8) because—

(A) the disclosure was made to a supervisor or to a person who participated in an activity that the employee or applicant reasonably believed to be covered by subsection (b)(8)(A)(i) and (ii);

(B) the disclosure revealed information that had been previously disclosed;

(C) of the employee's or applicant's motive for making the disclosure;

(D) the disclosure was not made in writing;

(E) the disclosure was made while the employee was off duty;

(F) the disclosure was made before the date on which the individual was appointed or applied for appointment to a position; or

(G) of the amount of time which has passed since the occurrence of the events described in the disclosure.

(2) If a disclosure is made during the normal course of duties of an employee, the principal job function of whom is to regularly investigate and disclose wrongdoing (referred to in this paragraph as the "disclosing employee"), the disclosure shall not be excluded from subsection (b)(8) if the disclosing employee demonstrates that an employee who has the authority to take, direct other individuals to take, recommend, or approve any personnel action with respect to the disclosing employee took, failed to take, or threatened to take or fail to take a personnel action with respect to the disclosing employee in reprisal for the disclosure made by the disclosing employee.

Amendments

2019—Subsec. (b)(8)(C). Pub. L. 116–92, §5721(1), added subpar. (C).

Subsec. (c)(2)(C)(iii)(III). Pub. L. 116–92, §5721(2), inserted "(including any committee of Congress with respect to information that is not classified or, if classified, has been classified by the head of an agency that is not an element of the intelligence community and does not reveal intelligence sources and methods)" after "Congress".

Pub. L. 115–73, §107(a)(1), redesignated subsecs. (d) to (f) as (c) to (e), respectively, and struck out former subsec. (c) which read as follows: "The head of each agency shall be responsible for the prevention of prohibited personnel practices, for the compliance with and enforcement of applicable civil service laws, rules, and regulations, and other aspects of personnel management, and for ensuring (in consultation with the Office of Special Counsel) that agency employees are informed of the rights and remedies available to them under this chapter and chapter 12 of this title, including how to make a lawful disclosure of information that is specifically required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs to the Special Counsel, the Inspector General of an agency, Congress, or other agency employee designated to receive such disclosures. Any individual to whom the head of an agency delegates authority for personnel management, or for any aspect thereof, shall be similarly responsible within the limits of the delegation."

Subsec. (f)(2). Pub. L. 115–91, §1097(c)(1)(B)(ii), added par. (2) and struck out former par. (2) which read as follows: "If a disclosure is made during the normal course of duties of an employee, the disclosure shall not be excluded from subsection (b)(8) if any employee who has authority to take, direct others to take, recommend, or approve any personnel action with respect to the employee making the disclosure, took, failed to take, or threatened to take or fail to take a personnel action with respect to that employee in reprisal for the disclosure."

2015—Subsec. (a)(2)(A)(viii). Pub. L. 114–113 inserted "or under title 38" after "chapter 43 of this title".

"(I) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office; and

"(II) as determined by the President, any Executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities, provided that the determination be made prior to a personnel action; or".

Subsec. (a)(2)(C)(ii). Pub. L. 112–199, §105, added cl. (ii) and struck out former cl. (ii) which read as follows: "the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, and, as determined by the President, any Executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities; or".

Subsec. (a)(2)(D). Pub. L. 112–199, §102, added subpar. (D).

Subsec. (b). Pub. L. 112–199, §103, amended concluding provisions generally. Prior to amendment, concluding provisions read as follows: "This subsection shall not be construed to authorize the withholding of information from the Congress or the taking of any personnel action against an employee who discloses information to the Congress."

Subsec. (b)(9)(A). Pub. L. 112–199, §101(b)(2)(B)(i), added subpar. (A) and struck out former subpar. (A) read as follows: "the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;".

Subsec. (c). Pub. L. 112–199, §112, inserted ", including how to make a lawful disclosure of information that is specifically required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs to the Special Counsel, the Inspector General of an agency, Congress, or other agency employee designated to receive such disclosures" after "chapter 12 of this title".

Subsec. (b)(2). Pub. L. 104–197 amended par. (2) generally. Prior to amendment, par. (2) read as follows: "solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action except as provided under section 3303(f);".

1994—Subsec. (a)(2)(A). Pub. L. 103–424, §5(a)(3), in concluding provisions, inserted before semicolon ", and in the case of an alleged prohibited personnel practice described in subsection (b)(8), an employee or applicant for employment in a Government corporation as defined in section 9101 of title 31".

Subsec. (a)(2)(A)(x), (xi). Pub. L. 103–424, §5(a)(1), (2), added cls. (x) and (xi) and struck out former cl. (x) which read as follows: "any other significant change in duties or responsibilities which is inconsistent with the employee's salary or grade level;".

Subsec. (a)(2)(B). Pub. L. 103–424, §5(b), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: " 'covered position' means any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service, but does not include—

"(i) a position which is excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character; or

"(ii) any position excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration."

Subsec. (c). Pub. L. 103–424, §5(d), inserted before period at end of first sentence ", and for ensuring (in consultation with the Office of Special Counsel) that agency employees are informed of the rights and remedies available to them under this chapter and chapter 12 of this title".

1993—Subsec. (b)(2). Pub. L. 103–94 amended par. (2) generally. Prior to amendment, par. (2) read as follows: "solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of—

"(A) an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or

"(B) an evaluation of the character, loyalty, or suitability of such individual;".

Subsec. (b)(9). Pub. L. 101–12, §4(b), amended par. (9) generally. Prior to amendment, par. (9) read as follows: "take or fail to take any personnel action against any employee or applicant for employment as a reprisal for the exercise of any appeal right granted by any law, rule, or regulation;".

Change of Name

"Government Publishing Office" substituted for "Government Printing Office" in subsec. (a)(2)(C) on authority of section 1301(b) of Pub. L. 113–235, set out as a note preceding section 301 of Title 44, Public Printing and Documents.

Effective Date of 2012 Amendment

Amendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

Effective Date of 1996 Amendment

Amendment by section 1122(a)(1) of Pub. L. 104–201 effective Oct. 1, 1996, see section 1124 of Pub. L. 104–201, set out as a note under section 193 of Title 10, Armed Forces.

Effective Date of 1993 Amendment; Savings Provision

Amendment by Pub. L. 103–94 effective 120 days after Oct. 6, 1993, but not to release or extinguish any penalty, forfeiture, or liability incurred under amended provision, which is to be treated as remaining in force for purpose of sustaining any proper proceeding or action for enforcement of that penalty, forfeiture, or liability, and no provision of Pub. L. 103–94 to affect any proceedings with respect to which charges were filed on or before 120 days after Oct. 6, 1993, with orders to be issued in such proceedings and appeals taken therefrom as if Pub. L. 103–94 had not been enacted, see section 12 of Pub. L. 103–94, set out as an Effective Date; Savings Provision note under section 7321 of this title.

Effective Date of 1989 Amendment

Amendment by Pub. L. 101–12 effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title.

Savings Provision

Pub. L. 112–199, title II, §201, Nov. 27, 2012, 126 Stat. 1475, provided that: "Nothing in this Act [see section 1 of Pub. L. 112–199, set out as a Short Title of 2012 Amendment note under section 101 of this title] shall be construed to imply any limitation on any protections afforded by any other provision of law to employees and applicants."

Pub. L. 105–339, §6(d), Oct. 31, 1998, 112 Stat. 3188, provided that: "This section [amending this section and repealing section 1599c of Title 10, Armed Forces] shall be treated as if it had never been enacted for purposes of any personnel action (within the meaning of section 2302 of title 5, United States Code) preceding the date of enactment of this Act [Oct. 31, 1998]."

Agency Websites

Pub. L. 112–199, title I, §104(b)(2), Nov. 27, 2012, 126 Stat. 1467, provided that: "Agencies making use of any nondisclosure policy, form, or agreement shall also post the statement required under section 2302(b)(13) of title 5, United States Code (as added by this Act) on the agency website, accompanied by the specific list of controlling Executive orders and statutory provisions."

Nondisclosure Policy, Form, or Agreement in Effect Before the Effective Date

Pub. L. 112–199, title I, §104(b)(3), Nov. 27, 2012, 126 Stat. 1467, provided that: "With respect to a nondisclosure policy, form, or agreement that was in effect before the effective date of this Act [see Effective Date of 2012 Amendment note above], but that does not contain the statement required under section 2302(b)(13) of title 5, United States Code (as added by this Act) for implementation or enforcement—

"(A) it shall not be a prohibited personnel practice to enforce that policy, form, or agreement with regard to a current employee if the agency gives such employee notice of the statement; and

"(B) it shall not be a prohibited personnel practice to enforce that policy, form, or agreement after the effective date of this Act with regard to a former employee if the agency complies with paragraph (2) of this subsection [set out as a note above]."

Disclosure of Censorship Related to Research, Analysis, or Technical Information

"(1) the term 'agency' has the meaning given under section 2302(a)(2)(C) of title 5, United States Code;

"(2) the term 'applicant' means an applicant for a covered position;

"(3) the term 'censorship related to research, analysis, or technical information' means any effort to distort, misrepresent, or suppress research, analysis, or technical information;

"(4) the term 'covered position' has the meaning given under section 2302(a)(2)(B) of title 5, United States Code;

"(5) the term 'employee' means an employee in a covered position in an agency; and

"(6) the term 'disclosure' has the meaning given under section 2302(a)(2)(D) of title 5, United States Code.

"(b) Protected Disclosure.—

"(1) In general.—Any disclosure of information by an employee or applicant for employment that the employee or applicant reasonably believes is evidence of censorship related to research, analysis, or technical information—

"(A) shall come within the protections of section 2302(b)(8)(A) of title 5, United States Code, if—

"(i) the employee or applicant reasonably believes that the censorship related to research, analysis, or technical information is or will cause—

"(I) any violation of law, rule, or regulation; or

"(II) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and

"(ii) such disclosure is not specifically prohibited by law or such information is not specifically required by Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs; and

"(B) shall come within the protections of section 2302(b)(8)(B) of title 5, United States Code, if—

"(i) the employee or applicant reasonably believes that the censorship related to research, analysis, or technical information is or will cause—

"(I) any violation of law, rule, or regulation; or

"(II) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and

"(ii) the disclosure is made to the Special Counsel, or to the Inspector General of an agency or another person designated by the head of the agency to receive such disclosures, consistent with the protection of sources and methods.

"(2) Disclosures not excluded.—A disclosure shall not be excluded from paragraph (1) for any reason described under section 2302(f)(1) or (2) of title 5, United States Code.

"(3) Rule of construction.—Nothing in this section shall be construed to imply any limitation on the protections of employees and applicants afforded by any other provision of law, including protections with respect to any disclosure of information believed to be evidence of censorship related to research, analysis, or technical information."

Nondisclosure Policies, Forms, and Agreements

"(1) Requirement.—Each agreement in Standard Forms 312 and 4414 of the Government and any other nondisclosure policy, form, or agreement of the Government shall contain the following statement: 'These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.'.

"(2) Agency websites.—Agencies making use of any nondisclosure policy, form, or agreement shall also post the statement required under paragraph (1) on the agency website, accompanied by the specific list of controlling Executive orders and statutory provisions.

"(3) Enforceability.—

"(A) In general.—Any nondisclosure policy, form, or agreement described under paragraph (1) that does not contain the statement required under paragraph (1) may not be implemented or enforced to the extent such policy, form, or agreement is inconsistent with that statement.

"(B) Nondisclosure policy, form, or agreement in effect before the effective date.—With respect to a nondisclosure policy, form, or agreement that was in effect before the effective date of this Act [see Effective Date of 2012 Amendment note above], but that does not contain the statement required under paragraph (1) for implementation or enforcement—

"(i) it shall not be a prohibited personnel practice to enforce that policy, form, or agreement with regard to a current employee if the agency gives such employee notice of the statement; and

"(ii) it shall not be a prohibited personnel practice to enforce that policy, form, or agreement after the effective date of this Act with regard to a former employee if the agency complies with paragraph (2).

"(b) Persons Other Than Government Employees.—Notwithstanding subsection (a), a nondisclosure policy, form, or agreement that is to be executed by a person connected with the conduct of an intelligence or intelligence-related activity, other than an employee or officer of the United States Government, may contain provisions appropriate to the particular activity for which such document is to be used. Such policy, form, or agreement shall, at a minimum, require that the person will not disclose any classified information received in the course of such activity unless specifically authorized to do so by the United States Government. Such nondisclosure policy, form, or agreement shall also make it clear that such forms do not bar disclosures to Congress or to an authorized official of an executive agency or the Department of Justice that are essential to reporting a substantial violation of law, consistent with the protection of sources and methods."

Federal Benefits and Non-Discrimination

Memorandum of President of the United States, June 17, 2009, 74 F.R. 29393, provided:

Memorandum for the Heads of Executive Departments and Agencies

Millions of hard-working, dedicated, and patriotic public servants are employed by the Federal Government as part of the civilian workforce, and many of these devoted Americans have same-sex domestic partners. Leading companies in the private sector are free to provide to same-sex domestic partners the same benefits they provide to married people of the opposite sex. Executive departments and agencies, however, may only provide benefits on that basis if they have legal authorization to do so. My Administration is not authorized by Federal law to extend a number of available Federal benefits to the same-sex partners of Federal employees. Within existing law, however, my Administration, in consultation with the Secretary of State, who oversees our Foreign Service employees, and the Director of the Office of Personnel Management, who oversees human resource management for our civil service employees, has identified areas in which statutory authority exists to achieve greater equality for the Federal workforce through extension to same-sex domestic partners of benefits currently available to married people of the opposite sex. Extending available benefits will help the Federal Government compete with the private sector to recruit and retain the best and the brightest employees.

I hereby request the following:

Section 1. Extension of Identified Benefits. The Secretary of State and the Director of the Office of Personnel Management shall, in consultation with the Department of Justice, extend the benefits they have respectively identified to qualified same-sex domestic partners of Federal employees where doing so can be achieved and is consistent with Federal law.

Sec. 2. Review of Governmentwide Benefits. The heads of all other executive departments and agencies, in consultation with the Office of Personnel Management, shall conduct a review of the benefits provided by their respective departments and agencies to determine what authority they have to extend such benefits to same-sex domestic partners of Federal employees. The results of this review shall be reported within 90 days to the Director of the Office of Personnel Management, who, in consultation with the Department of Justice, shall recommend to me any additional measures that can be taken, consistent with existing law, to provide benefits to the same-sex domestic partners of Federal Government employees.

Sec. 3. Promoting Compliance with Existing Law Requiring Federal Workplaces to be Free of Discrimination Based on Non-Merit Factors. The Office of Personnel Management shall issue guidance within 90 days to all executive departments and agencies regarding compliance with, and implementation of, the civil service laws, rules, and regulations, including 5 U.S.C. 2302(b)(10), which make it unlawful to discriminate against Federal employees or applicants for Federal employment on the basis of factors not related to job performance.

Sec. 4. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) Authority granted by law or Executive Order to an agency, or the head thereof; or

(ii) Functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Sec. 5. Publication. The Director of the Office of Personnel Management is hereby authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.

Extension of Benefits to Same-Sex Domestic Partners of Federal Employees

Memorandum of President of the United States, June 2, 2010, 75 F.R. 32247, provided:

Memorandum for the Heads of Executive Departments and Agencies

For far too long, many of our Government's hard-working, dedicated LGBT employees have been denied equal access to the basic rights and benefits their colleagues enjoy. This kind of systemic inequality undermines the health, well-being, and security not just of our Federal workforce, but also of their families and communities. That is why, last June, I directed the heads of executive departments and agencies (agencies), in consultation with the Office of Personnel Management (OPM), to conduct a thorough review of the benefits they provide and to identify any that could be extended to LGBT employees and their partners and families. Although legislative action is necessary to provide full equality to LGBT Federal employees, the agencies have identified a number of benefits that can be extended under existing law. OPM, in consultation with the Department of Justice, has provided me with a report recommending that all of the identified benefits be extended.

Accordingly, I hereby direct the following:

Section 1. Immediate Actions To Extend Benefits. Agencies should immediately take the following actions, consistent with existing law, in order to extend benefits to the same-sex domestic partners of Federal employees, and, where applicable, to the children of same-sex domestic partners of Federal employees:

(a) The Director of OPM should take appropriate action to:

(i) clarify that the children of employees' same-sex domestic partners fall within the definition of "child" for purposes of Federal child-care subsidies, and, where appropriate, for child-care services;

(ii) clarify that, for purposes of employee assistance programs, same-sex domestic partners and their children qualify as "family members";

(iii) issue a proposed rule that would clarify that employees' same-sex domestic partners qualify as "family members" for purposes of noncompetitive appointments made pursuant to Executive Order 12721 of July 30, 1990;

(iv) issue a proposed rule that would add a Federal retiree's same-sex domestic partner to the list of individuals presumed to have an insurable interest in the employee pursuant to 5 U.S.C. 8339(k)(1), 8420;

(v) clarify that under appropriate circumstances, employees' same-sex domestic partners and their children qualify as dependents for purposes of evacuation payments made under 5 U.S.C. 5522–5523; Folio: 1632 [sic]

(vi) amend its guidance on implementing President Clinton's April 11, 1997, memorandum to heads of executive departments and agencies on "Expanded Family and Medical Leave Policies" to specify that the 24 hours of unpaid leave made available to Federal employees in connection with (i) school and early childhood educational activities; (ii) routine family medical purposes; and (iii) elderly relatives' health or care needs, may be used to meet the needs of an employee's same-sex domestic partner or the same-sex domestic partner's children; and

(vii) clarify that employees' same-sex domestic partners qualify as dependents for purposes of calculating the extra allowance payable under 5 U.S.C. 5942a to assist employees stationed on Johnston Island, subject to any limitations applicable to spouses.

(b) The Administrator of General Services should take appropriate action to amend the definitions of "immediate family" and "dependent" appearing in the Federal Travel Regulations, 41 C.F.R. Chs. 300–304, to include same-sex domestic partners and their children, so that employees and their domestic partners and children can obtain the full benefits available under applicable law, including certain travel, relocation, and subsistence payments.

(c) All agencies offering any of the benefits specified by OPM in implementing guidance under section 3 of this memorandum, including credit union membership, access to fitness facilities, and access to planning and counseling services, should take all appropriate action to provide the same level of benefits that is provided to employees' spouses and their children to employees' same-sex domestic partners and their children.

(d) All agencies with authority to provide benefits to employees outside of the context of title 5, United States Code should take all appropriate actions to ensure that the benefits being provided to employees' spouses and their children are also being provided, at an equivalent level wherever permitted by law, to their employees' same-sex domestic partners and their children.

Sec. 2. Continuing Obligation To Provide New Benefits. In the future, all agencies that provide new benefits to the spouses of Federal employees and their children should, to the extent permitted by law, also provide them to the same-sex domestic partners of their employees and those same-sex domestic partners' children. This section applies to appropriated and nonappropriated fund instrumentalities of such agencies.

Sec. 3. Monitoring and Guidance. The Director of OPM shall monitor compliance with this memorandum, and may instruct agencies to provide the Director with reports on the status of their compliance, and prescribe the form Folio: 1633 [sic] and manner of such reports. The Director of OPM shall also issue guidance to ensure consistent and appropriate implementation.

Sec. 4. Reporting. By April 1, 2011, and annually thereafter, the Director of OPM shall provide the President with a report on the progress of the agencies in implementing this memorandum until such time as all recommendations have been appropriately implemented.

Sec. 5. General Provisions. (a) Except as expressly stated herein, nothing in this memorandum shall be construed to impair or otherwise affect:

(i) authority granted by law or Executive Order to an agency, or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Sec. 6. Publication. The Director of OPM is hereby authorized and directed to publish this memorandum in the Federal Register.

§2303. Prohibited personnel practices in the Federal Bureau of Investigation

(a) Any employee of the Federal Bureau of Investigation who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, take or fail to take a personnel action with respect to an employee in, or applicant for, a position in the Bureau as a reprisal for a disclosure of information—

(1) made—

(A) in the case of an employee, to a supervisor in the direct chain of command of the employee, up to and including the head of the employing agency;

(B) to the Inspector General;

(C) to the Office of Professional Responsibility of the Department of Justice;

(D) to the Office of Professional Responsibility of the Federal Bureau of Investigation;

(E) to the Inspection Division of the Federal Bureau of Investigation;

(F) as described in section 7211;

(G) to the Office of Special Counsel; or

(H) to an employee designated by any officer, employee, office, or division described in subparagraphs (A) through (G) for the purpose of receiving such disclosures; and

(2) which the employee or applicant reasonably believes evidences—

(A) any violation of any law, rule, or regulation; or

(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

For the purpose of this subsection, "personnel action" means any action described in clauses (i) through (x) of section 2302(a)(2)(A) of this title with respect to an employee in, or applicant for, a position in the Bureau (other than a position of a confidential, policy-determining, policymaking, or policy-advocating character).

(b) The Attorney General shall prescribe regulations to ensure that such a personnel action shall not be taken against an employee of the Bureau as a reprisal for any disclosure of information described in subsection (a) of this section.

(c) The President shall provide for the enforcement of this section in a manner consistent with applicable provisions of sections 1214 and 1221 of this title.

Amendments

2016—Subsec. (a). Pub. L. 114–302 substituted "an employee in, or applicant for, a position in the Bureau as a reprisal for a disclosure of information—" for "any employee of the Bureau as a reprisal for a disclosure of information by the employee to the Attorney General (or an employee designated by the Attorney General for such purpose) which the employee or applicant reasonably believes evidences—" in introductory provisions, added pars. (1) and (2), and struck out former pars. (1) and (2) which read as follows:

"(1) a violation of any law, rule, or regulation, or

"(2) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety".

"(1) In general.—Any employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor, of the Federal Bureau of Investigation who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, take or fail to take a personnel action with respect to a contractor employee as a reprisal for a disclosure of information—

"(A) made—

"(i) to a supervisor in the direct chain of command of the contractor employee;

"(ii) to the Inspector General;

"(iii) to the Office of Professional Responsibility of the Department of Justice;

"(iv) to the Office of Professional Responsibility of the Federal Bureau of Investigation;

"(v) to the Inspection Division of the Federal Bureau of Investigation;

"(vi) to the Office of Special Counsel; or

"(vii) to an employee designated by any officer, employee, office, or division described in clauses (i) through (vii) for the purpose of receiving such disclosures; and

"(B) which the contractor employee reasonably believes evidences—

"(i) any violation of any law, rule, or regulation (including with respect to evidence of another employee or contractor employee accessing or sharing classified information without authorization); or

"(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

"(2) Actions by request.—A personnel action under paragraph (1) is prohibited even if the action is undertaken at the request of an official of the Federal Bureau of Investigation, unless the request takes the form of a nondiscretionary directive and is within the authority of the official making the request.

"(3) Regulations.—The Attorney General shall prescribe regulations to ensure that a personnel action described in paragraph (1) shall not be taken against a contractor employee of the Federal Bureau of Investigation as a reprisal for any disclosure of information described in subparagraph (A) of such paragraph.

"(4) Enforcement.—The President shall provide for the enforcement of this subsection.

"(5) Definitions.—In this subsection:

"(A) The term 'contractor employee' means an employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor, of the Federal Bureau of Investigation.

"(B) The term 'personnel action' means any action described in clauses (i) through (x) of section 2302(a)(2)(A) of title 5, United States Code, with respect to a contractor employee."

Delegation of Responsibilities Concerning FBI Employees Under the Civil Service Reform Act of 1978

Memorandum of President of the United States, Apr. 14, 1997, 62 F.R. 23123, provided:

Memorandum for the Attorney General

By the authority vested in me by the Constitution and laws of the United States of America, including section 301 of title 3, United States Code, I hereby delegate to the Attorney General the functions concerning employees of the Federal Bureau of Investigation vested in the President by section 101(a) of the Civil Service Reform Act of 1978 (Public Law 95–454), as amended by the Whistleblower Protection Act of 1989 (Public Law 101–12), and codified at section 2303(c) of title 5, United States Code, and direct the Attorney General to establish appropriate processes within the Department of Justice to carry out these functions. Not later than March 1 of each year, the Attorney General shall provide a report to the President stating the number of allegations of reprisal received during the preceding calendar year, the disposition of each allegation resolved during the preceding calendar year, and the number of unresolved allegations pending as of the end of the calendar year.

All of the functions vested in the President by section 2303(c) of title 5, United States Code, and delegated to the Attorney General, may be redelegated, as appropriate, provided that such functions may not be redelegated to the Federal Bureau of Investigation.

You are authorized and directed to publish this memorandum in the Federal Register.

(a) In General.—Notwithstanding any other provision of law, any individual holding or applying for a position within the Transportation Security Administration shall be covered by—

(1) the provisions of section 2302(b)(1), (8), and (9);

(2) any provision of law implementing section 2302(b)(1), (8), or (9) by providing any right or remedy available to an employee or applicant for employment in the civil service; and

(3) any rule or regulation prescribed under any provision of law referred to in paragraph (1) or (2).

(b) Rule of Construction.—Nothing in this section shall be construed to affect any rights, apart from those described in subsection (a), to which an individual described in subsection (a) might otherwise be entitled under law.

Prior Provisions

A prior section 2304 was renumbered section 2305 of this title.

Effective Date

Pub. L. 112–199, title I, §109(c), Nov. 27, 2012, 126 Stat. 1471, provided that: "The amendments made by this section [enacting this section and renumbering sections 2304 and 2305 of this title as sections 2305 and 2306, respectively, of this title] shall take effect on the date of enactment of this section [Nov. 27, 2012]."

§2305. Responsibility of the Government Accountability Office

If requested by either House of the Congress (or any committee thereof), or if considered necessary by the Comptroller General, the Government Accountability Office shall conduct audits and reviews to assure compliance with the laws, rules, and regulations governing employment in the executive branch and in the competitive service and to assess the effectiveness and soundness of Federal personnel management.

1995—Pub. L. 104–66 struck out subsec. (a) designation before "If requested by" and struck out subsec. (b) which read as follows: "The General Accounting Office shall prepare and submit an annual report to the President and the Congress on the activities of the Merit Systems Protection Board and the Office of Personnel Management. The report shall include a description of—

"(1) significant actions taken by the Board to carry out its functions under this title; and

"(2) significant actions of the Office of Personnel Management, including an analysis of whether or not the actions of the Office are in accord with merit system principles and free from prohibited personnel practices."

§2306. Coordination with certain other provisions of law

No provision of this chapter, or action taken under this chapter, shall be construed to impair the authorities and responsibilities set forth in section 102 of the National Security Act of 1947 (61 Stat. 495; 50 U.S.C. 403),1 the Central Intelligence Agency Act of 1949 (63 Stat. 208; 50 U.S.C. 403a and following),1 the Act entitled "An Act to provide certain administrative authorities for the National Security Agency, and for other purposes", approved May 29, 1959 (73 Stat. 63; 50 U.S.C. 402 note),1 and the Act entitled "An Act to amend the Internal Security Act of 1950", approved March 26, 1964 (78 Stat. 168; 50 U.S.C. 831–835).

The Central Intelligence Agency Act of 1949, referred to in text, is act June 20, 1949, ch. 227, 63 Stat. 208, which was formerly classified generally to section 403a et seq. of Title 50, War and National Defense, prior to editorial reclassification in Title 50, and is now classified generally to chapter 46 (§3501 et seq.) of Title 50. For complete classification of this Act to the Code, see Tables.

The Act entitled "An Act to provide certain administrative authorities for the National Security Agency, and for other purposes", approved May 29, 1959, referred to in text, is Pub. L. 86–36, May 29, 1959, 73 Stat. 63, which was formerly set out as a note under section 402 of Title 50, War and National Defense, prior to editorial reclassification in Title 50, and is now classified generally to chapter 47 (§3601 et seq.) of Title 50. For complete classification of this Act to the Code, see Tables.

The Act entitled "An Act to amend the Internal Security Act of 1950", approved March 26, 1964, referred to in text, is act Sept. 23, 1950, ch. 1024, title III, as added Mar. 26, 1964, Pub. L. 88–290,78 Stat. 168, which is classified principally to subchapter III (§831 et seq.) of chapter 23 of Title 50. For complete classification of this Act to the Code, see Tables.

Amendments

2012—Pub. L. 112–199 renumbered section 2305 of this title as this section.

The words "confirmed by" are substituted for "advised and consented to".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§2902. Commission; where recorded

(a) Except as provided by subsections (b) and (c) of this section, the Secretary of State shall make out and record, and affix the seal of the United States to, the commission of an officer appointed by the President. The seal of the United States may not be affixed to the commission before the commission has been signed by the President.

(b) The commission of an officer in the civil service or uniformed services under the control of the Secretary of Agriculture, the Secretary of Commerce, the Secretary of Defense, the Secretary of a military department, the Secretary of the Interior, the Secretary of Homeland Security, or the Secretary of the Treasury shall be made out and recorded in the department in which he is to serve under the seal of that department. The departmental seal may not be affixed to the commission before the commission has been signed by the President.

(c) The commissions of judicial officers and United States attorneys and marshals, appointed by the President, by and with the advice and consent of the Senate, and other commissions which before August 8, 1888, were prepared at the Department of State on the requisition of the Attorney General, shall be made out and recorded in the Department of Justice under the seal of that department and countersigned by the Attorney General. The departmental seal may not be affixed to the commission before the commission has been signed by the President.

In subsection (a), the words "Except as provided by subsections (b) and (c) of this section," are added on authority of former sections 11 and 12, which are codified in subsections (b) and (c) of this section. The words "the commission of an officer" are substituted for "all civil commissions for officers of the United States" because of the definition of "officer" in section 2104. The words "by the President" are coextensive with and substituted for "by the President, by and with the advice and consent of the Senate, or by the President alone".

In subsection (b), the words "officer in the civil service or uniformed services" are substituted for "officer" because of the definition of "officer" in section 2104. The words "direction and" are omitted as included within "the control". The words "the Secretary of Defense" are added on authority of the Acts of July 26, 1947, ch. 343, §305(a), 61 Stat. 508, and Aug. 10, 1949, ch. 412, §12(g), 63 Stat. 591. The words "the Secretary of a military department" are substituted for "the Secretary of War, the Secretary of the Navy" (appearing in the Act of Mar. 28, 1896) because of the definition of "military department" in section 102. The title of the Secretary of War was changed to Secretary of the Army by the Act of July 26, 1947, ch. 343, §205, 61 Stat. 501. "Secretary of the Air Force" is included on authority of the Act of July 26, 1947, ch. 343, §207(a), (f), 61 Stat. 502. The words "Secretary of Commerce" are substituted for "Secretary of Commerce and Labor" on authority of the Act of Mar. 4, 1913, ch. 141, §1, 37 Stat. 736. The words "under the departmental seal" are substituted for "and the departmental seal affixed thereto". The words "any laws to the contrary notwithstanding" are omitted as unnecessary. The last sentence of section 14 of the Act of Mar. 3, 1875, is omitted as executed.

In subsection (c), the words "and shall be" and "any laws to the contrary notwithstanding" are omitted as unnecessary.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Amendments

2006—Subsec. (b). Pub. L. 109–241 inserted "the Secretary of Homeland Security," after "the Secretary of the Interior,".

1975—Subsec. (b). Pub. L. 94–183 struck out "the Postmaster General," after "under the control of".

§2903. Oath; authority to administer

(a) The oath of office required by section 3331 of this title may be administered by an individual authorized by the laws of the United States or local law to administer oaths in the State, District, or territory or possession of the United States where the oath is administered.

(b) An employee of an Executive agency designated in writing by the head of the Executive agency, or the Secretary of a military department with respect to an employee of his department, may administer—

(1) the oath of office required by section 3331 of this title, incident to entrance into the executive branch; or

(2) any other oath required by law in connection with employment in the executive branch.

(c) An oath authorized or required under the laws of the United States may be administered by—

(1) the Vice President; or

(2) an individual authorized by local law to administer oaths in the State, District, or territory or possession of the United States where the oath is administered.

In subsection (b), the words "On and after June 26, 1943" are omitted as executed, and the word "officer" is omitted as included in "employee". The words "Executive agency" are coextensive with and substituted for "executive departments or independent establishments, including any agency the majority of the stock of which is owned by the Government of the United States" because of the definition of "Executive agency" in section 105. The words "or the Secretary of a military department with respect to an employee of his department" are inserted to preserve the application of the source law. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive Department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source law for this section, which was in effect in 1949, remained applicable to the Secretaries of the military departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which is set out in the reviser's note for section 301. The words "of the Federal Government" and "and to have the same force and effect as oaths administered by officers having seals" are omitted as unnecessary.

In subsection (c), the word "Constitution" is omitted because "laws", as used in this title, encompasses the Constitution. In subsection (c)(1), the words "of the United States" are omitted as unnecessary. In subsection (c)(2), the words "an individual authorized by local law to administer oaths in the State, District, or territory, or possession of the United States where the oath is administered" are coextensive with and substituted for "notaries public duly appointed in any State, District, or Territory of the United States, by clerks and prothonotaries of courts of record of any such State, District, or Territory, by the deputies of such clerks and prothonotaries, and by all magistrates authorized by the laws of or pertaining to any such State, District, or Territory to administer oaths".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§2904. Oath; administered without fees

An employee of an Executive agency who is authorized to administer the oath of office required by section 3331 of this title, or any other oath required by law in connection with employment in the executive branch, may not charge or receive a fee or pay for administering the oath.

The section is restated to combine former sections 16a(a) (1st 9 words after last comma) and 20. The prohibition is restated in positive form. The words "officer" and "clerk" are omitted as included in "employee". Reference to oaths taken on promotion is omitted as unnecessary.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§2905. Oath; renewal

(a) An employee of an Executive agency or an individual employed by the government of the District of Columbia who, on original appointment, subscribed to the oath of office required by section 3331 of this title is not required to renew the oath because of a change in status so long as his service is continuous in the agency in which he is employed, unless, in the opinion of the head of the Executive agency, the Secretary of a military department with respect to an employee of his department, or the Commissioners of the District of Columbia, the public interest so requires.

(b) An individual who, on appointment as an employee of a House of Congress, subscribed to the oath of office required by section 3331 of this title is not required to renew the oath so long as his service as an employee of that House of Congress is continuous.

In subsection (a), the word "civilian" is omitted as unnecessary because of the definition of "employee" in section 2105. The words "Executive agency" are coextensive with and substituted for "executive departments and independent establishments of the United States" because of the definition of "Executive agency" in section 105. The words "the Secretary of a military department with respect to an employee of his department" are inserted to preserve the application of the source law. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive Department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source law for this section, which was in effect in 1949, remained applicable to the Secretaries of the military departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which is set out in the reviser's note for section 301.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§2906. Oath; custody

The oath of office taken by an individual under section 3331 of this title shall be delivered by him to, and preserved by, the House of Congress, agency, or court to which the office pertains.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

SUBCHAPTER II—REPORTS

§2951. Reports to the Office of Personnel Management

The President may prescribe rules which shall provide, as nearly as conditions of good administration warrant, that—

(1) the appointing authority notify the Office of Personnel Management in writing of the following actions and their dates as to each individual selected for appointment in the competitive service from among those who have been examined—

The authority of the President to prescribe rules is added on authority of former section 633(1), which is carried into section 3302.

In paragraph (1), the word "authority" is substituted for "power". The words "or employment" are omitted as included within "appointment".

In paragraph (1)(B), the words "separation during probation" are substituted for "of the rejection of any such person after probation". The words "rejection . . . after probation" refer to a rejection, i.e., separation, after a portion of the probationary period has been served but before the end of the probationary period. This is so because an individual can be rejected only during the probationary period. After he has completed the probationary period, he can be removed only under procedures governing removals from the competitive service, and removals of this nature are covered by paragraph (E).

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§2952. Time of making annual reports

Except when a different time is specifically prescribed by statute, the head of each Executive department or military department shall make the annual reports, required to be submitted to Congress, at the beginning of each regular session of Congress. The reports shall cover the transactions of the preceding year.

The words "Executive department" are substituted for "department" as the definition of "department" applicable to this section is coextensive with the definition of "Executive department" in section 101.

The words "or military department" are inserted to preserve the application of the source law. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive Department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source law for this section, which was in effect in 1949, remained applicable to the Secretaries of the military departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which is set out in the reviser's note for section 301.

This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, 201(d), as added Aug. 10, 1949, ch. 412, §4, 63 Stat. 579 (former 5 U.S.C. 171–1), which provides "Except to the extent inconsistent with the provisions of this Act [National Security Act of 1947], the provisions of title IV of the Revised Statutes as now or hereafter amended shall be applicable to the Department of Defense" is omitted from this title but is not repealed.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§2953. Reports to Congress on additional employee requirements

(a) Each report, recommendation, or other communication, of an official nature, of an Executive agency which—

(1) relates to pending or proposed legislation which, if enacted, will entail an estimated annual expenditure of appropriated funds in excess of $1,000,000;

(2) is submitted or transmitted to Congress or a committee thereof in compliance with law or on the initiative of the appropriate authority of the executive branch; and

(3) officially proposes or recommends the creation or expansion, either by action of Congress or by administrative action, of a function, activity, or authority of the Executive agency to be in addition to those functions, activities, and authorities thereof existing when the report, recommendation, or other communication is so submitted or transmitted;

shall contain a statement, concerning the Executive agency, for each of the first 5 fiscal years during which each additional or expanded function, activity, or authority so proposed or recommended is to be in effect, setting forth the following information—

(A) the estimated maximum additional—

(i) man-years of civilian employment, by general categories of positions;

(ii) expenditures for personal services; and

(iii) expenditures for all purposes other than personal services;

which are attributable to the function, activity, or authority and which will be required to be effected by the Executive agency in connection with the performance thereof; and

(B) such other statement, discussion, explanation, or other information as is considered advisable by the appropriate authority of the executive branch or that is required by Congress or a committee thereof.

In subsection (a), the words, "Executive agency" are substituted for "department, agency, or independent establishment of the executive branch of the Federal Government (including any corporation wholly owned by the United States)" in view of the definition of "Executive agency" in section 105. The exception of "a Government controlled corporation" is subsection (b) (2) is added to preserve the application to corporations wholly owned by the United States.

The exception of "the General Accounting Office" in subsection (b)(3) is added to preserve application to the executive branch.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Amendments

§2954. Information to committees of Congress on request

An Executive agency, on request of the Committee on Government Operations of the House of Representatives, or of any seven members thereof, or on request of the Committee on Governmental Affairs of the Senate, or any five members thereof, shall submit any information requested of it relating to any matter within the jurisdiction of the committee.

The words "Executive agency" are substituted for "executive department and independent establishment" in view of the definition of "Executive agency" in section 105.

The words "Committee on Government Operations of the House of Representatives" are substituted for "Committee on Expenditures in the Executive Departments of the House of Representatives" on authority of H. Res. 647 of the 82d Congress, adopted July 3, 1952.

The words "Committee on Government Operations of the Senate" are substituted for "Committee on Expenditures in the Executive Departments of the Senate" on authority of S. Res. 280 of the 82d Congress, adopted Mar. 3, 1952.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Amendments

1994—Pub. L. 103–437 substituted "Committee on Governmental Affairs of the Senate" for "Committee on Government Operations of the Senate".

Committee on Government Operations of House of Representatives treated as referring to Committee on Government Reform and Oversight of House of Representatives by section 1(a) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Government Reform and Oversight of House of Representatives changed to Committee on Government Reform of House of Representatives by House Resolution No. 5, One Hundred Sixth Congress, Jan. 6, 1999. Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019.

Subpart B—Employment and Retention

CHAPTER 31—AUTHORITY FOR EMPLOYMENT

SUBCHAPTER I—EMPLOYMENT AUTHORITIES

Sec.

3101.

General authority to employ.

3102.

Employment of personal assistants for handicapped employees, including blind and deaf employees.

3103.

Employment at seat of Government only for services rendered.

3104.

Employment of specially qualified scientific and professional personnel.

3105.

Appointment of administrative law judges.

3106.

Employment of attorneys; restrictions.

3107.

Employment of publicity experts; restrictions.

3108.

Employment of detective agencies; restrictions.

3109.

Employment of experts and consultants; temporary or intermittent.

3110.

Employment of relatives; restrictions.

3111.

Acceptance of volunteer service.

3111a.

Federal internship programs.

3112.

Disabled veterans; noncompetitive appointment.

3113.

Restriction on reemployment after conviction of certain crimes.

3114.

Appointment of candidates to positions in the competitive service by the Securities and Exchange Commission.1

3115.

Expedited hiring authority for college graduates; competitive service 2

SUBCHAPTER I—EMPLOYMENT AUTHORITIES

Amendments

§3101. General authority to employ

Each Executive agency, military department, and the government of the District of Columbia may employ such number of employees of the various classes recognized by chapter 51 of this title as Congress may appropriate for from year to year.

The authorization is restated to conform to the style of this title. The word "Executive agency" are substituted for "executive department, independent establishment" in view of the definitions in sections 103, 104, and 105. The source statute (an act to authorize the appointment of employees in the executive branch etc.) applied to the entire executive branch, and government corporations as well as other agencies in the executive branch were included within the words "independent establishment". The words "or a military department" are inserted to preserve the application of the source statute. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source statute for this subsection, which was in effect in 1949, remained applicable to the Secretaries of the military departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which is set out in the reviser's note for section 301. The words "for services in the District of Columbia or elsewhere" are eliminated as surplusage. The reference to chapter 51 is substituted for the reference to the Classification Act of 1923 because the Act of Oct. 28, 1949, ch. 782, §1106(a), 63 Stat. 972, amended the section to refer to the Classification Act of 1949, which is carried into this title. The proviso in former section 43 and former section 514d (2d par.) are omitted as superseded by former section 22a, which is carried into section 302. The last sentence of the Act of June 26, 1930, is omitted as executed.

This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, §201(d), as added Aug. 10, 1949, ch. 412, §4, 63 Stat. 579 (former 5 U.S.C. 171–1), which provides "Except to the extent inconsistent with the provisions of this Act [National Security Act of 1947], the provisions of title IV of the Revised Statutes as now or hereafter amended shall be applicable to the Department of Defense" is omitted from this title but is not repealed.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Reports on Political Appointees Appointed to Nonpolitical Permanent Positions

"(1) the term 'agency' has the meaning given the term 'Executive agency' in section 105 of title 5, United States Code;

"(2) the term 'covered civil service position' means a position in the civil service (as defined in section 2101 of title 5, United States Code) that is not—

"(A) a temporary position; or

"(B) a political position;

"(3) the term 'former political appointee' means an individual who—

"(A) is not serving in an appointment to a political position; and

"(B) served as a political appointee during the 5-year period ending on the date of the request for an appointment to a covered civil service position in any agency;

"(4) the term 'political appointee' means an individual serving in an appointment to a political position; and

"(5) the term 'political position' means—

"(A) a position described under sections 5312 through 5316 of title 5, United States Code (relating to the Executive Schedule);

"(B) a noncareer appointment in the Senior Executive Service, as defined under paragraph (7) of section 3132(a) of title 5, United States Code; or

"(C) a position in the executive branch of the Government of a confidential or policy-determining character under schedule C of subpart C of part 213 of title 5, Code of Federal Regulations.

"(b) Reporting on Current or Recent Political Appointees Appointed to Covered Civil Service Positions.—

"(1) Annual report.—Except as provided in paragraph (2), the Director of the Office of Personnel Management shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform [now Committee on Oversight and Reform] of the House of Representatives an annual report regarding requests by agencies to appoint political appointees or former political appointees to covered civil service positions. Each report shall cover one calendar year and shall—

"(A) for each request by an agency that a political appointee be appointed to a covered civil service position during the period covered by the report, provide—

"(i) the date on which the request was received by the Office of Personnel Management;

"(ii) subject to subsection (c), the name of the individual and the political position held by the individual, including title, office, and agency;

"(iii) the date on which the individual was first appointed to a political position in the agency in which the individual is serving as a political appointee;

"(iv) the grade and rate of basic pay for the individual as a political appointee;

"(v) the proposed covered civil service position, including title, office, and agency, and the proposed grade and rate of basic pay for the individual;

"(vi) whether the Office of Personnel Management approved or denied the request; and

"(vii) the date on which the individual was appointed to a covered civil service position, if applicable; and

"(B) for each request by an agency that a former political appointee be appointed to a covered civil service position during the period covered by the report, provide—

"(i) the date on which the request was received by the Office of Personnel Management;

"(ii) subject to subsection (c), the name of the individual and the political position held by the individual, including title, office, and agency;

"(iii) the date on which the individual was first appointed to any political position;

"(iv) the grade and rate of basic pay for the individual as a political appointee;

"(v) the date on which the individual ceased to serve in a political position;

"(vi) the proposed covered civil service position, including title, office, and agency, and the proposed grade and rate of basic pay for the individual;

"(vii) whether the Office of Personnel Management approved or denied the request; and

"(viii) the date on which the individual was first appointed to a covered civil service position, if applicable.

"(2) Quarterly report in certain years.—In the last year of the term of a President, or, if applicable, the last year of the second consecutive term of a President, the report required under paragraph (1) shall be submitted quarterly and shall cover each quarter of the year, except that the last quarterly report shall also cover January 1 through 20 of the following year.

"(c) Names and Titles of Certain Appointees.—If determined appropriate by the Director of the Office of Personnel Management, a report submitted under subsection (b) may exclude the name or title of a political appointee or former political appointee—

"(1) who—

"(A) was requested to be appointed to a covered civil service position; and

"(B) was not appointed to a covered civil service position; or

"(2) relating to whom a request to be appointed to a covered civil service position is pending at the end of the period covered by that report."

Reduction of Federal Full-Time Equivalent Positions

"(a) Definition.—For the purpose of this section, the term 'agency' means an Executive agency (as defined by section 105 of title 5, United States Code), but does not include the Government Accountability Office.

"(b) Limitations on Full-Time Equivalent Positions.—The President, through the Office of Management and Budget (in consultation with the Office of Personnel Management), shall ensure that the total number of full-time equivalent positions in all agencies shall not exceed—

"(1) 2,084,600 during fiscal year 1994;

"(2) 2,043,300 during fiscal year 1995;

"(3) 2,003,300 during fiscal year 1996;

"(4) 1,963,300 during fiscal year 1997;

"(5) 1,922,300 during fiscal year 1998; and

"(6) 1,882,300 during fiscal year 1999.

"(c) Monitoring and Notification.—The Office of Management and Budget, after consultation with the Office of Personnel Management, shall—

"(1) continuously monitor all agencies and make a determination on the first date of each quarter of each applicable fiscal year of whether the requirements under subsection (b) are met; and

"(2) notify the President and the Congress on the first date of each quarter of each applicable fiscal year of any determination that any requirement of subsection (b) is not met.

"(d) Compliance.—If, at any time during a fiscal year, the Office of Management and Budget notifies the President and the Congress that any requirement under subsection (b) is not met, no agency may hire any employee for any position in such agency until the Office of Management and Budget notifies the President and the Congress that the total number of full-time equivalent positions for all agencies equals or is less than the applicable number required under subsection (b).

"(e) Waiver.—

"(1) Emergencies.—Any provision of this section may be waived upon a determination by the President that—

"(A) the existence of a state of war or other national security concern so requires; or

"(B) the existence of an extraordinary emergency threatening life, health, safety, property, or the environment so requires.

"(2) Agency efficiency or critical mission.—

"(A) Subsection (d) may be waived, in the case of a particular position or category of positions in an agency, upon a determination of the President that the efficiency of the agency or the performance of a critical agency mission so requires.

"(B) Whenever the President grants a waiver pursuant to subparagraph (A), the President shall take all necessary actions to ensure that the overall limitations set forth in subsection (b) are not exceeded.

"(f) Employment Backfill Prevention.—

"(1) In general.—The total number of funded employee positions in all agencies (excluding the Department of Defense and the Central Intelligence Agency) shall be reduced by one position for each vacancy created by the separation of any employee who has received, or is due to receive, a voluntary separation incentive payment under section 3(a)–(e) [5 U.S.C. 5597 note]. For purposes of this subsection, positions and vacancies shall be counted on a full-time-equivalent basis.

"(2) Related restriction.—No funds budgeted for and appropriated by any Act for salaries or expenses of positions eliminated under this subsection may be used for any purpose other than authorized separation costs.

"(A) In general.—If any agency is otherwise exempted by any law from the limitations on full-time equivalent positions or the restrictions on hiring established by this section—

"(i) paragraph (1) shall apply to vacancies created in such agency; and

"(ii) the reductions required pursuant to clause (i) shall be made in the number of funded employee positions in such agency.

"(B) Waiver authority.—In the case of a particular position in an agency, subparagraph (A) may be waived upon a determination by the head of the agency that the performance of a critical agency mission requires the waiver.

"(C) Relation to other law.—No law may be construed as suspending or modifying this paragraph unless such law specifically amends this paragraph.

"(g) Limitation on Procurement of Service Contracts.—The President shall take appropriate action to ensure that there is no increase in the procurement of service contracts by reason of the enactment of this Act [see Tables for classification], except in cases in which a cost comparison demonstrates such contracts would be to the financial advantage of the Federal Government."

Limitation on Number of Civilian Employees in Executive Branch

Pub. L. 95–454, title III, §311, Oct. 13, 1978, 92 Stat. 1153, which provided that the total number of civilian employees in the executive branch, on Sept. 30, 1979, on Sept. 30, 1980, and Sept. 30, 1981, shall not exceed the number of such employees on Sept. 30, 1977, terminated by its own terms on Jan. 31, 1981.

Pub. L. 116–93, div. C, title VII, §704, Dec. 20, 2019, 133 Stat. 2484, provided that: "Unless otherwise specified in law during the current fiscal year, no part of any appropriation contained in this or any other Act shall be used to pay the compensation of any officer or employee of the Government of the United States (including any agency the majority of the stock of which is owned by the Government of the United States) whose post of duty is in the continental United States unless such person: (1) is a citizen of the United States; (2) is a person who is lawfully admitted for permanent residence and is seeking citizenship as outlined in 8 U.S.C. 1324b(a)(3)(B); (3) is a person who is admitted as a refugee under 8 U.S.C. 1157 or is granted asylum under 8 U.S.C. 1158 and has filed a declaration of intention to become a lawful permanent resident and then a citizen when eligible; or (4) is a person who owes allegiance to the United States: Provided, That for purposes of this section, affidavits signed by any such person shall be considered prima facie evidence that the requirements of this section with respect to his or her status are being complied with: Provided further, That for purposes of subsections (2) and (3) such affidavits shall be submitted prior to employment and updated thereafter as necessary: Provided further, That any person making a false affidavit shall be guilty of a felony, and upon conviction, shall be fined no more than $4,000 or imprisoned for not more than 1 year, or both: Provided further, That the above penal clause shall be in addition to, and not in substitution for, any other provisions of existing law: Provided further, That any payment made to any officer or employee contrary to the provisions of this section shall be recoverable in action by the Federal Government: Provided further, That this section shall not apply to any person who is an officer or employee of the Government of the United States on the date of enactment of this Act [Dec. 20, 2019], or to international broadcasters employed by the Broadcasting Board of Governors [now the United States Agency for Global Media], or to temporary employment of translators, or to temporary employment in the field service (not to exceed 60 days) as a result of emergencies: Provided further, That this section does not apply to the employment as Wildland firefighters for not more than 120 days of nonresident aliens employed by the Department of the Interior or the USDA Forest Service pursuant to an agreement with another country."

Similar provisions to those in the Citizenship Requirement for Employees Compensated From Appropriated Funds note above were contained in the following prior appropriation acts:

Ex. Ord. No. 12839. Reduction of 100,000 Federal Positions

Ex. Ord. No. 12839, Feb. 10, 1993, 58 F.R. 8515, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code, section 3301 of title 5, United States Code, and section 1111 of title 31, United States Code, it is hereby ordered as follows:

Section 1. Limits on Hiring Civilian Personnel. Each executive department or agency with over 100 employees shall eliminate not less than 4 percent of its civilian personnel positions (measured on a full-time equivalent (FTE) basis) over the next 3 fiscal years. The positions shall be vacated through attrition or early out programs established at the discretion of the department and agency heads. At least 10 percent of the reductions shall come from the Senior Executive Service, GS–15 and GS–14 levels or equivalent.

Sec. 2. Coverage. This order applies to all executive branch departments and agencies with over 100 employees (measured on a FTE basis).

Sec. 3. Target Dates. Each department and agency shall achieve 25 percent of its total reductions by the end of fiscal year 1993, 62.5 percent by the end of fiscal year 1994, and 100 percent by the end of fiscal year 1995.

Sec. 4. Implementation. The Director of the Office of Management and Budget shall issue detailed instructions regarding the implementation of this order, including exemptions necessary for the delivery of essential services and compliance with applicable law.

Sec. 5. Independent Agencies. All independent regulatory commissions and agencies are requested to comply with the provisions of this order.

William J. Clinton.

§3102. Employment of personal assistants for handicapped employees, including blind and deaf employees

(a) For the purpose of this section—

(1) "agency" means—

(A) an Executive agency;

(B) the Library of Congress; and

(C) an office, agency, or other establishment in the judicial branch;

(2) "handicapped employee" means an individual employed by an agency who is blind or deaf or who otherwise qualifies as a handicapped individual within the meaning of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 794); and

(3) "nonprofit organization" means an organization determined by the Secretary of the Treasury to be an organization described in section 501(c) of the Internal Revenue Code of 1986 (26 U.S.C. 501(c)) which is exempt from taxation under section 501(a) of such Code.

(b)(1) The head of each agency may employ one or more personal assistants who the head of the agency determines are necessary to enable a handicapped employee of that agency to perform the employee's official duties and who shall serve without pay from the agency, without regard to—

(A) the provisions of this title governing appointment in the competitive service;

(B) chapter 51 and subchapter III of chapter 53 of this title; and

(C) section 1342 of title 31.

Such employment may include the employing of a reading assistant or assistants for a blind employee or an interpreting assistant or assistants for a deaf employee.

(2) A personal assistant, including a reading or interpreting assistant, employed under this subsection may receive pay for services performed by the assistant from the handicapped employee or a nonprofit organization, without regard to section 209 of title 18.

(c) The head of each agency may also employ or assign one or more personal assistants who the head of the agency determines are necessary to enable a handicapped employee of that agency to perform the employee's official duties. Such employment may include the employing of a reading assistant or assistants for a blind employee or an interpreting assistant or assistants for a deaf employee.

(d)(1) In the case of any handicapped employee (including a blind or deaf employee) traveling on official business, the head of the agency may authorize the payment to an individual to accompany or assist (or both) the handicapped employee for all or a portion of the travel period involved. Any payment under this subsection to such an individual may be made either directly to that individual or by advancement or reimbursement to the handicapped employee.

(2) With respect to any individual paid to accompany or assist a handicapped employee under paragraph (1) of this subsection—

(A) the amount paid to that individual shall not exceed the limit or limits which the Office of Personnel Management shall prescribe by regulation to ensure that the payment does not exceed amounts (including pay and, if appropriate, travel expenses and per diem allowances) which could be paid to an employee assigned to accompany or assist the handicapped employee; and

(B) that individual shall be considered an employee, but only for purposes of chapter 81 of this title (relating to compensation for injury) and sections 2671 through 2680 of title 28 (relating to tort claims).

(e) This section may not be held or considered to prevent or limit in any way the assignment to a handicapped employee (including a blind or deaf employee) by an agency of clerical or secretarial assistance, at the expense of the agency under statutes and regulations currently applicable at the time, if that assistance normally is provided, or authorized to be provided, in that manner under currently applicable statutes and regulations.

In subsection (a)(1), the word "agency" is substituted for "department". The words "Executive agency" are coextensive with and substituted for "each executive department of the Federal Government, each agency or independent establishment in the executive branch of such Government, each corporation wholly owned or controlled by such Government, and the General Accounting Office" in view of the definition of "Executive agency" in section 105.

In subsection (a)(3), the words "individual employed" are substituted for "employee" so as to include individuals employed by the government of the District of Columbia who are not employees as defined by section 2105.

In subsection (b), the word "may" is substituted for "is authorized" and the words "in his discretion" are omitted as unnecessary in view of the permissive nature of the authority. The words "in the provisions of this title governing appointment in the competitive service" are substituted for "the civil service rules". The words "section 209 of title 18" are substituted for "section 1914 of title 18" on authority of the Act of Oct. 24, 1962, Pub. L. 87–849, §2, 76 Stat. 1126.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

References in Text

Section 501 of the Rehabilitation Act of 1973, referred to in subsec. (a)(2), is classified to section 791 of Title 29, Labor, rather than to section 794 of Title 29 as shown in text.

1980—Pub. L. 96–523 amended section generally and, among other changes, in section catchline substituted "personal assistants for handicapped employees, including blind and" for "reading assistants for blind employees and interpreting assistants for", in subsec. (a) substituted applicability to handicapped employees for applicability to blind and deaf employees omitted applicability to the government of the District of Columbia, in subsec. (b) substituted applicability to personal assistants for applicability to reading and interpreting assistants for blind and deaf employees, respectively, redesignated former subsec. (d) as (c) and made changes in phraseology, added subsec. (d), and redesignated former subsec. (c) as (e) and made changes in phraseology.

Effective Date of 1980 Amendment

Pub. L. 96–523, §3, Dec. 12, 1980, 94 Stat. 3040, provided that: "The amendments made by this Act [amending this section, section 7 of the Federal Advisory Committee Act, set out in the Appendix to this title, section 604 of Title 28, Judiciary and Judicial Procedure, and section 410 of Title 39, Postal Service] shall take effect sixty days after the date of the enactment of this Act [Dec. 12, 1980]."

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–623 intended to restate without substantive change the law in effect on Oct. 22, 1968, see section 6 of Pub. L. 90–623, set out as a note under section 5334 of this title.

§3103. Employment at seat of Government only for services rendered

An individual may be employed in the civil service in an Executive department at the seat of Government only for services actually rendered in connection with and for the purposes of the appropriation from which he is paid. An individual who violates this section shall be removed from the service.

The words "civil officer, draughtsman, copyist, messenger, assistant messenger, mechanic, watchman, laborer, or other employee" are omitted as obsolete language and "individual" is substituted therefor. The words "in the civil service" are added to preserve the application of former section 46 to civilian employees. The words "or subordinate bureaus or offices thereof" are omitted as surplusage. The words "and at the rate of pay usual and proper for the services" are omitted as surplusage since all pay rates are governed by statute.

All after the 75th words of section 4 of the Act of Aug. 5, 1882, as amended by section 7(b) of the Act of Sept. 23, 1950, except the 255th through 316th words, are omitted as executed. The 255th through 296th words are scheduled for repeal as superseded (see Table II–b), and the 297th through 316th words are codified in section 5501. The Act of Aug. 15, 1876, ch. 287, §5, 19 Stat. 169, cited as authority for former section 46 was repealed by section 7(a) of the Act of Sept. 23, 1950.

In the last sentence, the word "removed" is substituted for "summarily removed" because of the provisions of the Lloyd-LaFollette Act, 37 Stat. 555, as amended, and the Veterans' Preference Act of 1944, 58 Stat. 387, as amended, which are carried into this title.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§3104. Employment of specially qualified scientific and professional personnel

(a) The Director of the Office of Personnel Management may establish, and from time to time revise, the maximum number of scientific or professional positions for carrying out research and development functions which require the services of specially qualified personnel which may be established outside of the General Schedule. Any such position may be established by action of the Director or, under such standards and procedures as the Office prescribes and publishes in such form as the Director may determine (including procedures under which the prior approval of the Director may be required), by agency action.

(b) The provisions of subsection (a) of this section shall not apply to any Senior Executive Service position (as defined in section 3132(a) of this title).

(c) In addition to the number of positions authorized by subsection (a) of this section, the Librarian of Congress may establish, without regard to the second sentence of subsection (a) of this section, not more than 8 scientific or professional positions to carry out the research and development functions of the Library of Congress which require the services of specially qualified personnel.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 Act

Section of title 5

Source (U.S. Code)

Source (Statutes at Large)

3104(a)(5)

5 App.: 1161(e).

July 5, 1966, Pub. L. 89–492 §5, 80 Stat. 262.

The amendment to 5 U.S.C. 3104(a)(5) reflects Public Law 89–492, section 5.

The other amendments to 5 U.S.C. 3104 are based on section 302 of the act of July 20, 1958, Public Law 85–568 (72 Stat. 433), 42 U.S.C. 2453, and transfer plan, effective March 15, 1960, 25 Federal Register 2151, section (2)(a)(2), (b) of which in effect transferred from the Department of Defense to the National Aeronautics and Space Administration 12 of the 450 scientific and professional positions authorized by section 2 of Public Law 86–377 (10 U.S.C. 1581). Provisions relating to the date for reporting to Congress are based on 10 U.S.C. 1582.

References in Text

The General Schedule, referred to in subsec. (a), is set out under section 5332 of this title.

Amendments

2008—Subsec. (a). Pub. L. 110–372 substituted "prescribes and publishes in such form as the Director may determine" for "prescribes".

1992—Subsec. (a). Pub. L. 102–378 struck out "(not to exceed 517)" after "positions" in first sentence and amended second sentence generally, substituting provisions authorizing establishment of positions by Director and by agency action for provisions specifying that only Director may establish positions.

1986—Pub. L. 99–386 struck out subsec. (b) relating to reports to Congress, redesignated pars. (1), (2), and (3) of subsec. (a) as subsecs. (a), (b), and (c), respectively, and substituted "subsection (a) of this section" for "paragraph (1) of this subsection" wherever appearing in subsecs. (b) and (c) as redesignated.

1978—Subsec. (a). Pub. L. 95–454, §414(a)(2)(B), substituted provisions authorizing the Director to establish the maximum number of scientific or professional positions, excepting Senior Executive Service positions, and authorizing the Librarian to establish not more than 8 such positions for provisions authorizing the head of certain named agencies to establish a specified number of scientific or professional positions.

Subsec. (b). Pub. L. 95–454, §414(a)(2)(B), (C), struck out subsec. (b), redesignated subsec. (c) as (b), and substituted in subsec. (b), as redesignated, "to fix under section 5361 of this title the pay for positions established under this section" for "to establish and fix the pay of positions under this section and section 5361 of this title".

Pub. L. 95–454, §801(a)(3)(C), substituted in subsec. (b), as redesignated, "section 5371 of this title" for "section 5361 of this title".

1970—Subsec. (a)(5). Pub. L. 91–375 repealed provision for employment in Post Office Department in scientific or professional positions of not more than 6 qualified individuals.

Effective Date of 2008 Amendment

Amendment by Pub. L. 110–372 effective on the first day of the first pay period beginning on or after the 180th day following Oct. 8, 2008, see section 2(d) of Pub. L. 110–372, set out as a note under section 5376 of this title.

Effective Date of 1978 Amendment

Amendment by section 801(a)(3)(C) of Pub. L. 95–454 effective on first day of first applicable pay period beginning on or after 90th day after Oct. 13, 1978, see section 801(a)(4) of Pub. L. 95–454, set out as an Effective Date note under section 5361 of this title.

Amendment by section 414(a)(2)(B), (C) of Pub. L. 95–454 effective 180 days after Oct. 13, 1978, see section 415(a)(3) of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

Effective Date of 1970 Amendment

Amendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note preceding section 101 of Title 39, Postal Service.

Retention Pay for Employees Subject to a Reduction in Pay Upon Termination of Bureau's Personnel Management Demonstration Project

Pub. L. 114–113, div. B, title II, §206, Dec. 18, 2015, 129 Stat. 2312, provided that: "Funds appropriated by this or any other Act, with respect to any fiscal year, under the heading 'Bureau of Alcohol, Tobacco, Firearms and Explosives, Salaries and Expenses' shall be available for retention pay for any employee who would otherwise be subject to a reduction in pay upon termination of the Bureau's Personnel Management Demonstration Project (as transferred to the Attorney General by section 1115 of the Homeland Security Act of 2002, Public Law 107–296 (28 U.S.C. 599B)): Provided, That such retention pay shall comply with section 5363 of title 5, United States Code, and related Office of Personnel Management regulations, except as provided in this section: Provided further, That such retention pay shall be paid at the employee's rate of pay immediately prior to the termination of the demonstration project and shall not be subject to the limitation set forth in section 5304(g)(1) of title 5, United States Code, and related regulations."

FBI Personnel Management System for Non-Special Agent Employees; Secretary of the Treasury

Pub. L. 113–235, div. B, title II, §206, Dec. 16, 2014, 128 Stat. 2197, provided that: "The Attorney General is authorized to extend through September 30, 2015, the Personnel Management Demonstration Project transferred to the Attorney General pursuant to [former] section 1115 of the Homeland Security Act of 2002 (Public Law 107–296; 28 U.S.C. 599B) without limitation on the number of employees or the positions covered."

Similar provisions were contained in the following prior appropriation acts:

[Personnel management demonstration project transferred to Attorney General for continued use by Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice, and Secretary of the Treasury for continued use by Tax and Trade Bureau, see section 599B of Title 28, Judiciary and Judicial Procedure.]

Termination of Authority To Establish Scientific or Professional Positions Outside the General Schedule

Pub. L. 95–454, title IV, §414(a)(2)(A), Oct. 13, 1978, 92 Stat. 1177, provided that: "Notwithstanding any other provision of law (other than section 3104 of title 5, United States Code), the authority granted to an agency (as defined in section 5102(a)(1) of such title 5) to establish scientific or professional positions outside of the General Schedule is hereby terminated."

Limitations on Executive Positions Not To Apply to Individuals Occupying Those Positions on October 12, 1978

"(A) The provisions of paragraphs (1) and (2) of this subsection [amending sections 3104 and 5108 of this title] shall not apply with respect to any position so long as the individual occupying such position on the day before the date of the enactment of this Act [Oct. 13, 1978] continues to occupy such position.

"(B) The Director—

"(i) in establishing under section 5108 of title 5, United States Code, the maximum number of positions which may be placed in GS–16, 17, and 18 of the General Schedule, and

"(ii) in establishing under section 3104 of such title 5 the maximum number of scientific or professional positions which may be established,

shall take into account positions to which subparagraph (A) of this paragraph applies."

[References in laws to rates of pay for GS–16, 17, or 18, or to maximum rates of pay under General Schedule, to be considered references to rates payable under specified sections of this title, see section 529 [title I, §101(c)(1)] of Pub. L. 101–509, set out in a note under section 5376 of this title.]

§3105. Appointment of administrative law judges

Each agency shall appoint as many administrative law judges as are necessary for proceedings required to be conducted in accordance with sections 556 and 557 of this title. Administrative law judges shall be assigned to cases in rotation so far as practicable, and may not perform duties inconsistent with their duties and responsibilities as administrative law judges.

The words "Subject to the civil service" are omitted as unnecessary inasmuch as appointments are made subject to the civil service laws unless specifically excepted. The words "and other laws not inconsistent with this chapter" are omitted as unnecessary because of the organization of this title.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Amendments

1978—Pub. L. 95–251 substituted references to administrative law judges for references to hearing examiners in section catchline and wherever appearing in text.

References to Hearing Examiner Deemed References to Administrative Law Judge

Pub. L. 95–251, §3, Mar. 27, 1978, 92 Stat. 184, provided that: "Any reference in any law, regulation, or order to a hearing examiner appointed under section 3105 of title 5, United States Code, shall be deemed to be a reference to an administrative law judge."

Hearing Examiners Employed by Department of Agriculture

Functions vested by section 551 et seq. of this title in hearing examiners employed by Department of Agriculture not included in functions of officers, agencies, and employees of that Department transferred to Secretary of Agriculture by 1953 Reorg. Plan No. 2, §1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out in the Appendix to this title.

Hearing Examiners Employed by Department of Commerce

Functions vested by section 551 et seq. of this title in hearing examiners employed by Department of Commerce not included in functions of officers, agencies, and employees of that Department transferred to Secretary of Commerce by 1950 Reorg. Plan No. 5, §1, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1263, set out in the Appendix to this title.

Hearing Examiners Employed by Department of the Interior

Functions vested by section 551 et seq. of this title in hearing examiners employed by Department of the Interior not included in functions of officers, agencies, and employees of that Department transferred to Secretary of the Interior by 1950 Reorg. Plan No. 3, §1, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1262, transferred set out in the Appendix to this title.

Hearing Examiners Employed by Department of Justice

Functions vested by section 551 et seq. of this title in hearing examiners employed by Department of Justice not included in functions of officers, agencies, and employees of that Department transferred to Attorney General by 1950 Reorg. Plan No. 2, §1, eff. May 24, 1950, 15 F.R. 3173, 64 Stat. 1261, set out in the Appendix to this title.

Hearing Examiners Employed by Department of Labor

Functions vested by section 551 et seq. of this title in hearing examiners employed by Department of Labor not included in functions of officers, agencies, and employees of Department transferred to Secretary of Labor by 1950 Reorg. Plan No. 6, §1, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1263, set out in the Appendix to this title.

Hearing Examiners Employed by Department of the Treasury

Functions vested by section 551 et seq. of this title in hearing examiners employed by Department of the Treasury not included in functions of officers, agencies, and employees of Department transferred to Secretary of the Treasury by 1950 Reorg. Plan No. 26, §1, eff. July 31, 1950, 15 F.R. 4935, 64 Stat. 1280, set out in the Appendix to this title.

Hearing Examiners Appointed for Indian Probate Work

Hearing examiners appointed for Indian probate work pursuant to former section 372–1 of Title 25, Indians, having met qualifications required for appointment pursuant to this section, deemed to have been appointed pursuant to this section, see section 12(b) of Pub. L. 101–301, set out as a Savings Provision note under former section 372–1 of Title 25.

§3106. Employment of attorneys; restrictions

Except as otherwise authorized by law, the head of an Executive department or military department may not employ an attorney or counsel for the conduct of litigation in which the United States, an agency, or employee thereof is a party, or is interested, or for the securing of evidence therefor, but shall refer the matter to the Department of Justice. This section does not apply to the employment and payment of counsel under section 1037 of title 10.

Sections 189 and 365 of the Revised Statutes, as amended, are combined and the section is revised to express the effect of the law since department heads have long employed, with the approval of Congress, attorneys to advise them in the conduct of their official duties. The law which concentrates the authority for the conduct of litigation in the Department of Justice is codified in section 516 of title 28 by this bill.

The words "Executive department" are substituted for "department" as the definition of "department" applicable to R.S. §189 is coextensive with the definition of "Executive department" in section 101. The words "or military department" are inserted to preserve the application of the source law. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive Department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source law for this section, which was in effect in 1949, remained applicable to the Secretaries of the military departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which is set out in the reviser's note for section 301.

R.S. §189 was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, §201(d), as added Aug. 1, 1949, ch. 412, §4, 63 Stat. 579 (former 5 U.S.C. 171–1), which provides "Except to the extent inconsistent with the provisions of this Act [National Security Act of 1947], the provisions of title IV of the Revised Statutes as now or hereafter amended shall be applicable to the Department of Defense" is omitted from this title but is not repealed.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§3107. Employment of publicity experts; restrictions

Appropriated funds may not be used to pay a publicity expert unless specifically appropriated for that purpose.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§3109. Employment of experts and consultants; temporary or intermittent

(a) For the purpose of this section—

(1) "agency" has the meaning given it by section 5721 of this title; and

(2) "appropriation" includes funds made available by statute under section 9104 of title 31.

(b) When authorized by an appropriation or other statute, the head of an agency may procure by contract the temporary (not in excess of 1 year) or intermittent services of experts or consultants or an organization thereof, including stenographic reporting services. Services procured under this section are without regard to—

(1) the provisions of this title governing appointment in the competitive service;

(2) chapter 51 and subchapter III of chapter 53 of this title; and

(3) section 6101(b) to (d) of title 41, except in the case of stenographic reporting services by an organization.

However, an agency subject to chapter 51 and subchapter III of chapter 53 of this title may pay a rate for services under this section in excess of the daily equivalent of the highest rate payable under section 5332 of this title only when specifically authorized by the appropriation or other statute authorizing the procurement of the services.

(c) Positions in the Senior Executive Service or the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service may not be filled under the authority of subsection (b) of this section.

(d) The Office of Personnel Management shall prescribe regulations necessary for the administration of this section. Such regulations shall include—

(1) criteria governing the circumstances in which it is appropriate to employ an expert or consultant under the provisions of this section;

(2) criteria for setting the pay of experts and consultants under this section; and

(3) provisions to ensure compliance with such regulations.

(e) Each agency shall report to the Office of Personnel Management on an annual basis with respect to—

(1) the number of days each expert or consultant employed by the agency during the period was so employed; and

(2) the total amount paid by the agency to each expert and consultant for such work during the period.

In subsection (b), the words "the provisions of this title governing appointment in the competitive service" are substituted for "the civil-service laws". The words "chapter 51 and subchapter III of chapter 53 of this title" are substituted for the reference to the classification laws which originally meant the Classification Act of 1923, as amended. Exception from the Classification Act of 1949 is based on sections 202(27) and 1106(a) of the Act of Oct. 28, 1949, ch. 782, 63 Stat. 956, 972.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Amendments

2011—Subsec. (b)(3). Pub. L. 111–350 substituted "section 6101(b) to (d) of title 41" for "section 5 of title 41".

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415 of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

Limitation on Consulting Services

Pub. L. 113–76, div. G, title IV, §401, Jan. 17, 2014, 128 Stat. 337, provided that: "In fiscal year 2014 and thereafter, the expenditure of any appropriation under this Act [div. G of Pub. L. 113–76, see Tables for classification] or any subsequent Act appropriating funds for departments and agencies funded in this Act, for any consulting service through procurement contract, pursuant to 5 U.S.C. 3109, shall be limited to those contracts where such expenditures are a matter of public record and available for public inspection, except where otherwise provided under existing law, or under existing Executive order issued pursuant to existing law."

Appropriations Relating to Labor, Health and Human Services, and Education; Public Disclosure of Consulting Service Through Procurement Contract

Pub. L. 102–394, title V, §501, Oct. 6, 1992, 106 Stat. 1825, provided that: "The expenditure of any appropriation under this Act or subsequent Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Acts for any consulting service through procurement contract, pursuant to 5 U.S.C. 3109, shall be limited to those contracts where such expenditures are a matter of public record and available for public inspection, except where otherwise provided under existing law, or under existing Executive order issued pursuant to existing law."

Similar provisions were contained in the following prior appropriation acts:

Availability of Appropriations for Services

Pub. L. 102–394, title V, §503, Oct. 6, 1992, 106 Stat. 1825, provided that: "Appropriations contained in this Act or subsequent Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Acts, available for salaries and expenses, shall be available for services as authorized by 5 U.S.C. 3109 but at rates for individuals not to exceed the per diem rate equivalent to the maximum rate payable for senior-level positions under 5 U.S.C. 5376."

[For reference to maximum rate under section 5376 of this title, see section 2(d)(3) of Pub. L. 110–372, set out as an Effective Date of 2008 Amendment note under section 5376 of this title.]

Similar provisions were contained in the following prior appropriation acts:

Appropriations Relating to Energy and Water Development; Public Disclosure of Consulting Service Through Procurement Contract

Pub. L. 102–377, title V, §504, Oct. 2, 1992, 106 Stat. 1342, provided that: "The expenditure of any appropriation under this Act or subsequent Energy and Water Development Appropriations Acts for any consulting service through procurement contract, pursuant to section 3109 of title 5, United States Code, hereafter shall be limited to those contracts where such expenditures are a matter of public record and available for public inspection, except where otherwise provided under existing law, or under existing Executive Order issued pursuant to existing law."

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code, it is hereby ordered as follows:

Section 1. Policy. To help ensure the integrity and effective supervision of the legal and expert witness services provided to or on behalf of the United States, it is the policy of the United States that organizations or individuals that provide such services to or on behalf of the United States shall be compensated in amounts that are reasonable, not contingent upon the outcome of litigation or other proceedings, and established according to criteria set in advance of performance of the services, except when otherwise required by law.

Sec. 2. Duties of Agency Heads. (a) Heads of agencies shall implement within their respective agencies the policy set forth in section 1, consistent with such instructions as the Attorney General may prescribe.

(b) After the date of this order, no agency shall enter into a contingency fee agreement for legal or expert witness services addressed by section 1 of this order, unless the Attorney General has determined that the agency's entry into the agreement is required by law.

(c) Within 90 days after the date of this order, the head of each agency shall notify the Attorney General and the Director of the Office of Management and Budget of any contingency fee agreements for services addressed by section 1 of this order that are in effect as of the date of this order.

Sec. 3. Definitions. For purposes of this order:

(a) The term "agency" means an executive agency as defined in section 105 of title 5, United States Code, and the United States Postal Service and the Postal Regulatory Commission, but shall exclude the Government Accountability Office and elements of the intelligence community (as defined in section 3(4) of the National Security Act of 1947 as amended (50 U.S.C. 401a(4)) [now 50 U.S.C. 3003(4)][)].

(b) The term "contingency fee agreement" means a contract or other agreement to provide services under which the amount or the payment of the fee for the services is contingent in whole or in part on the outcome of the matter for which the services were obtained. The term does not include:

(i) qualified tax collection contracts defined in section 6306 of title 26, United States Code, and

(ii) contracts described in sections 3711 and 3718 of title 31, United States Code.

Sec. 4. General Provisions. (a) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(b) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to an agency or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.

(c) This order is not intended to, and does not, create any right, benefit, or privilege, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, instrumentalities, or entities, its officers or employees, or any other person.

George W. Bush.

§3110. Employment of relatives; restrictions

(a) For the purpose of this section—

(1) "agency" means—

(A) an Executive agency;

(B) an office, agency, or other establishment in the legislative branch;

(C) an office, agency, or other establishment in the judicial branch; and

(D) the government of the District of Columbia;

(2) "public official" means an officer (including the President and a Member of Congress), a member of the uniformed service, an employee and any other individual, in whom is vested the authority by law, rule, or regulation, or to whom the authority has been delegated, to appoint, employ, promote, or advance individuals, or to recommend individuals for appointment, employment, promotion, or advancement in connection with employment in an agency; and

(b) A public official may not appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official. An individual may not be appointed, employed, promoted, or advanced in or to a civilian position in an agency if such appointment, employment, promotion, or advancement has been advocated by a public official, serving in or exercising jurisdiction or control over the agency, who is a relative of the individual.

(c) An individual appointed, employed, promoted, or advanced in violation of this section is not entitled to pay, and money may not be paid from the Treasury as pay to an individual so appointed, employed, promoted, or advanced.

(d) The Office of Personnel Management may prescribe regulations authorizing the temporary employment, in the event of emergencies resulting from natural disasters or similar unforeseen events or circumstances, of individuals whose employment would otherwise be prohibited by this section.

(e) This section shall not be construed to prohibit the appointment of an individual who is a preference eligible in any case in which the passing over of that individual on a certificate of eligibles furnished under section 3317(a) of this title will result in the selection for appointment of an individual who is not a preference eligible.

Amendments

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Effective Date

Pub. L. 90–206, title II, §220(a)(1), Dec. 16, 1967, 81 Stat. 639, provided, except as otherwise expressly provided, that: "This section [enacting provisions set out as a note under section 8704 of this title] and sections 201 [enacting provisions set out as Short Title note under section 5332 of this title], 207 [amending section 5303 of this title], 212 [enacting provisions set out as a note under section 5303 of this title], 218 [enacting provisions set out as a note under section 5332 of this title], 221 [enacting this section and provisions set out as a note under this section], 224(a) and (b) [amending sections 4101 and 8339 of this title], and 225 [enacting sections 351–361 of Title 2, The Congress] shall become effective on the date of enactment of this title [Dec. 16, 1967]."

Retroactive Effect

Pub. L. 90–206, title II, §221(c), Dec. 16, 1967, 81 Stat. 641, provided that: "The amendments made by this section [enacting this section] do not apply to an appointment, employment, advancement, or promotion made or advocated by a public official of any individual who is a relative of the public official if, prior to the effective date of this section [see Effective Date note above], the individual was appointed by the public official, or received an appointment advocated by the public official, and is serving under the appointment on such effective date."

§3111. Acceptance of volunteer service

(a) For the purpose of this section, "student" means an individual who is enrolled, not less than half-time, in a high school, trade school, technical or vocational institute, junior college, college, university, or comparable recognized educational institution. An individual who is a student is deemed not to have ceased to be a student during an interim between school years if the interim is not more than 5 months and if such individual shows to the satisfaction of the Office of Personnel Management that the individual has a bona fide intention of continuing to pursue a course of study or training in the same or different educational institution during the school semester (or other period into which the school year is divided) immediately after the interim.

(b) Notwithstanding section 1342 of title 31, the head of an agency may accept, subject to regulations issued by the Office, voluntary service for the United States if the service—

(1) is performed by a student, with the permission of the institution at which the student is enrolled, as part of an agency program established for the purpose of providing educational experiences for the student;

(2) is to be uncompensated; and

(3) will not be used to displace any employee.

(c)(1) Except as provided in paragraph (2), any student who provides voluntary service under subsection (b) of this section shall not be considered a Federal employee for any purpose other than for purposes of section 7905 (relating to commuting by means other than single-occupancy motor vehicles), chapter 81 (relating to compensation for injury) and sections 2671 through 2680 of title 28 (relating to tort claims).

(2) In addition to being considered a Federal employee for the purposes specified in paragraph (1), any student who provides voluntary service as part of a program established under subsection (b) of this section in the Internal Revenue Service, Department of the Treasury, shall be considered an employee of the Department of the Treasury for purposes of—

(A) section 552a of this title (relating to disclosure of records);

(B) subsections (a)(1), (h)(1), (k)(6), and (l)(4) of section 6103 of title 26 (relating to confidentiality and disclosure of returns and return information);

(C) sections 7213(a)(1) and 7431 of title 26 (relating to unauthorized disclosures of returns and return information by Federal employees and other persons); and

(D) section 7423 of title 26 (relating to suits against employees of the United States);

except that returns and return information (as defined in section 6103(b) of title 26) shall be made available to students under such program only to the extent that the Secretary of the Treasury or his designee determines that the duties assigned to such students so require.

(d) Notwithstanding section 1342 of title 31, the head of an agency may accept voluntary service for the United States under chapter 37 of this title and regulations of the Office of Personnel Management.

(e)(1) For purposes of this section the term "agency" shall include the Architect of the Capitol. With respect to the Architect of the Capitol, the authority granted to the Office of Personnel Management under this section shall be exercised by the Architect of the Capitol.

(2) In this section, the term "agency" includes the Congressional Budget Office, except that in the case of the Congressional Budget Office—

(A) any student who provides voluntary service in accordance with this section shall be considered an employee of the Congressional Budget Office for purposes of section 203 of the Congressional Budget Act of 1974 (relating to the level of confidentiality of budget data); and

(B) the authority granted to the Office of Personnel Management under this section shall be exercised by the Director of the Congressional Budget Office.

Effective Date of 2002 Amendments

Amendment by Pub. L. 107–347 effective 120 days after Dec. 17, 2002, see section 402(a) of Pub. L. 107–347, set out as an Effective Date note under section 3601 of Title 44, Public Printing and Documents.

Amendment by Pub. L. 107–296 effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as an Effective Date note under section 101 of Title 6, Domestic Security.

Effective Date

Section effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title.

§3111a. Federal internship programs

(a) Internship Coordinator.—The head of each agency operating an internship program shall appoint an individual within such agency to serve as an internship coordinator.

(b) Online Information.—

(1) Agencies.—The Office of Personnel Management shall make publicly available on the Internet—

(A) the name and contact information of the internship coordinator for each agency; and

(2) Office of personnel management.—The Office of Personnel Management shall make publicly available on the Internet links to the websites where the information described in paragraph (1) is displayed.

(c) Definitions.—For purposes of this section—

(1) the term "internship program" means—

(A) a volunteer service program under section 3111(b);

(B) an internship program established under Executive Order 13562, dated December 27, 2010 (75 Federal Register 82585);

(C) a program operated by a nongovernment organization for the purpose of providing paid internships in agencies under a written agreement that is similar to an internship program established under Executive Order 13562, dated December 27, 2010 (75 Federal Register 82585); or

(D) a program that—

(i) is similar to an internship program established under Executive Order 13562, dated December 27, 2010 (75 Federal Register 82585); and

(ii) is authorized under another statutory provision of law;

(2) the term "intern" means an individual participating in an internship program; and

§3112. Disabled veterans; noncompetitive appointment

Under such regulations as the Office of Personnel Management shall prescribe, an agency may make a noncompetitive appointment leading to conversion to career or career-conditional employment of a disabled veteran who has a compensable service-connected disability of 30 percent or more.

Effective Date

§3114. Appointment of candidates to certain positions in the competitive service by the Securities and Exchange Commission

(a) Applicability.—This section applies with respect to any position of accountant, economist, and securities compliance examiner at the Commission that is in the competitive service, and any position at the Commission in the competitive service that requires specialized knowledge of financial and capital market formation or regulation, financial market structures or surveillance, or information technology.

(b) Appointment Authority.—

(1) In general.—The Commission may appoint candidates to any position described in subsection (a)—

(A) in accordance with the statutes, rules, and regulations governing appointments in the excepted service; and

(B) notwithstanding any statutes, rules, and regulations governing appointments in the competitive service.

(2) Rule of construction.—The appointment of a candidate to a position under authority of this subsection shall not be considered to cause such position to be converted from the competitive service to the excepted service.

(c) Reports.—No later than 90 days after the end of fiscal year 2003 (for fiscal year 2003) and 90 days after the end of fiscal year 2005 (for fiscal years 2004 and 2005), the Commission shall submit a report with respect to its exercise of the authority granted by subsection (b) during such fiscal years to the Committee on Government Reform and the Committee on Financial Services of the House of Representatives and the Committee on Governmental Affairs and the Committee on Banking, Housing, and Urban Affairs of the Senate. Such reports shall describe the changes in the hiring process authorized by such subsection, including relevant information related to—

(1) the quality of candidates;

(2) the procedures used by the Commission to select candidates through the streamlined hiring process;

(3) the numbers, types, and grades of employees hired under the authority;

(4) any benefits or shortcomings associated with the use of the authority;

(5) the effect of the exercise of the authority on the hiring of veterans and other demographic groups; and

(6) the way in which managers were trained in the administration of the streamlined hiring system.

(d) Commission Defined.—For purposes of this section, the term "Commission" means the Securities and Exchange Commission.

Amendments

2010—Pub. L. 111–203 substituted "Appointment of candidates to certain positions in the competitive service by the Securities and Exchange Commission" for "Appointment of accountants, economists, and examiners by the Securities and Exchange Commission" in section catchline, added subsec. (a), and struck out former subsec. (a). Prior to amendment, text read as follows: "This section applies with respect to any position of accountant, economist, and securities compliance examiner at the Commission that is in the competitive service."

Change of Name

Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019.

Effective Date of 2010 Amendment

Amendment by Pub. L. 111–203 effective 1 day after July 21, 2010, except as otherwise provided, see section 4 of Pub. L. 111–203, set out as an Effective Date note under section 5301 of Title 12, Banks and Banking.

§3115. Expedited hiring authority for college graduates; competitive service

(a) Definitions.—In this section:

(1) Director.—The term "Director" means the Director of the Office of Personnel Management.

(2) Institution of higher education.—The term "institution of higher education" has the meaning given the term in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)).

(b) Appointment.—

(1) In general.—The head of an agency may appoint, without regard to any provision of sections 3309 through 3319 and 3330, a qualified individual to a position in the competitive service classified in a professional or administrative occupational category at the GS–11 level, or an equivalent level, or below.

(2) Restrictions.—An appointment under paragraph (1) shall be made in accordance with regulations prescribed by the Director.

(c) Qualifications for Appointment.—The head of an agency may make an appointment under subsection (b) only if the individual being appointed—

(1) has received a baccalaureate or graduate degree from an institution of higher education;

(2) applies for the position—

(A) not later than 2 years after the date on which the individual being appointed received the degree described in paragraph (1); or

(B) in the case of an individual who has completed a period of not less than 4 years of obligated service in a uniformed service, not later than 2 years after the date of the discharge or release of the individual from that service; and

(3) meets each minimum qualification standard prescribed by the Director for the position to which the individual is being appointed.

(d) Public Notice and Advertising.—

(1) In general.—The head of an agency making an appointment under subsection (b) shall publicly advertise positions under this section.

(2) Requirements.—In carrying out paragraph (1), the head of an agency shall—

(A) adhere to merit system principles;

(B) advertise positions in a manner that provides for diverse and qualified applicants; and

(1) In general.—Except as provided in paragraph (2), the total number of employees that the head of an agency may appoint under this section during a fiscal year may not exceed the number equal to 15 percent of the number of individuals that the agency head appointed during the previous fiscal year to a position in the competitive service classified in a professional or administrative occupational category, at the GS–11 level, or an equivalent level, or below, under a competitive examining procedure.

(2) Exceptions.—Under a regulation prescribed under subsection (f), the Director may establish a lower limit on the number of individuals that may be appointed under paragraph (1) of this subsection during a fiscal year based on any factor the Director considers appropriate.

(f) Regulations.—Not later than 180 days after the date of enactment of this section, the Director shall issue interim regulations, with an opportunity for comment, for the administration of this section.

(g) Reporting.—

(1) In general.—Not later than September 30 of each of the first 3 fiscal years beginning after the date of enactment of this section, the head of an agency that makes an appointment under this section shall submit a report to—

(A) Congress that assesses the impact of the use of the authority provided under this section during the fiscal year in which the report is submitted; and

(B) the Director that contains data that the Director considers necessary for the Director to assess the impact and effectiveness of the authority described in subparagraph (A).

(2) Content.—The head of an agency shall include in each report under paragraph (1)—

(A) the total number of individuals appointed by the agency under this section, as well as the number of such individuals who are—

(i) minorities or members of other underrepresented groups; or

(ii) veterans;

(B) recruitment sources;

(C) the total number of individuals appointed by the agency during the applicable fiscal year to a position in the competitive service classified in a professional or administrative occupational category at the GS–11 level, or an equivalent level, or below; and

(D) any additional data specified by the Director.

(h) Special Provision Regarding the Department of Defense.—

(1) Authority.—Nothing in this section shall preclude the Secretary of Defense from exercising any authority to appoint a recent graduate under section 1106 of the National Defense Authorization Act for Fiscal Year 2017 (10 U.S.C. note prec. 1580), or any applicable successor statute.

(2) Regulations.—Any regulations prescribed by the Director for the administration of this section shall not apply to the Department of Defense during the period ending on the date on which the appointment authority of the Secretary of Defense under section 1106 of the National Defense Authorization Act for Fiscal Year 2017 (10 U.S.C. note prec. 1580), or any applicable successor statute, terminates.

References in Text

GS–11, referred to in subsecs. (b)(1), (e)(1), and (g)(2)(C), is contained in the General Schedule which is set out under section 5332 of this title.

The date of enactment of this section, referred to in subsecs. (f) and (g)(1), is the date of enactment of Pub. L. 115–232, which was approved Aug. 13, 2018.

Section 1106 of the National Defense Authorization Act for Fiscal Year 2017, referred to in subsec. (h), is section 1106 of Pub. L. 114–328, which is set out as a note preceding section 1580 of Title 10, Armed Forces.

(1) Director.—The term "Director" means the Director of the Office of Personnel Management.

(2) Institution of higher education.—The term "institution of higher education" has the meaning given the term in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)).

(3) Student.—The term "student" means an individual enrolled or accepted for enrollment in an institution of higher education who is pursuing a baccalaureate or graduate degree on at least a part-time basis as determined by the institution of higher education.

(b) Appointment.—

(1) In general.—The head of an agency may make a time-limited appointment of a student, without regard to any provision of sections 3309 through 3319 and 3330, to a position in the competitive service at the GS–11 level, or an equivalent level, or below for which the student is qualified.

(2) Restrictions.—An appointment under paragraph (1) shall be made in accordance with regulations prescribed by the Director.

(c) Public Notice.—

(1) In general.—The head of an agency making an appointment under subsection (b) shall publicly advertise positions available under this section.

(2) Requirements.—In carrying out paragraph (1), the head of an agency shall—

(A) adhere to merit system principles;

(B) advertise positions in a manner that provides for diverse and qualified applicants; and

(1) In general.—Except as provided in paragraph (2), the total number of students that the head of an agency may appoint under this section during a fiscal year may not exceed the number equal to 15 percent of the number of students that the agency head appointed during the previous fiscal year to a position at the GS–11 level, or an equivalent level, or below.

(2) Exceptions.—Under a regulation prescribed under subsection (g), the Director may establish a lower limit on the number of students that may be appointed under paragraph (1) of this subsection during a fiscal year based on any factor the Director considers appropriate.

(e) Conversion.—The head of an agency may, without regard to any provision of chapter 33 or any other provision of law relating to the examination, certification, and appointment of individuals in the competitive service, convert a student serving in an appointment under subsection (b) to a permanent appointment in the competitive service within the agency without further competition if the student—

(1) has completed the course of study leading to the baccalaureate or graduate degree;

(2) has completed not less than 640 hours of current continuous employment in an appointment under subsection (b); and

(3) meets the qualification standards for the position to which the student will be converted.

(f) Termination.—The head of an agency shall, without regard to any provision of chapter 35 or 75, terminate the appointment of a student appointed under subsection (b) upon completion of the designated academic course of study unless the student is selected for conversion under subsection (e).

(g) Regulations.—Not later than 180 days after the date of enactment of this section, the Director shall issue interim regulations, with an opportunity for comment, for the administration of this section.

(h) Reporting.—

(1) In general.—Not later than September 30 of each of the first 3 fiscal years beginning after the date of enactment of this section, the head of an agency that makes an appointment under this section shall submit a report to—

(A) Congress that assesses the impact of the use of the authority provided under this section during the fiscal year in which the report is submitted; and

(B) the Director that contains data that the Director considers necessary for the Director to assess the impact and effectiveness of the authority described in subparagraph (A).

(2) Content.—The head of an agency shall include in each report under paragraph (1)—

(A) the total number of individuals appointed by the agency under this section, as well as the number of such individuals who are—

(i) minorities or members of other underrepresented groups; or

(ii) veterans;

(B) recruitment sources;

(C) the total number of individuals appointed by the agency during the applicable fiscal year to a position in the competitive service at the GS–11 level, or an equivalent level, or below; and

(D) any additional data specified by the Director.

(i) Special Provision Regarding the Department of Defense.—

(1) Authority.—Nothing in this section shall preclude the Secretary of Defense from exercising any authority to appoint a post-secondary student under section 1106 of the National Defense Authorization Act for Fiscal Year 2017 (10 U.S.C. note prec. 1580), or any applicable successor statute.

(2) Regulations.—Any regulations prescribed by the Director for the administration of this section shall not apply to the Department of Defense during the period ending on the date on which the appointment authority of the Secretary of Defense under section 1106 of the National Defense Authorization Act for Fiscal Year 2017 (10 U.S.C. note prec. 1580), or any applicable successor statute, terminates.

References in Text

GS–11, referred to in subsecs. (b)(1), (d)(1), and (h)(2)(C), is contained in the General Schedule which is set out under section 5332 of this title.

The date of enactment of this section, referred to in subsecs. (g) and (h)(1), is the date of enactment of Pub. L. 115–232, which was approved Aug. 13, 2018.

Section 1106 of the National Defense Authorization Act for Fiscal Year 2017, referred to in subsec. (i), is section 1106 of Pub. L. 114–328, which is set out as a note preceding section 1580 of Title 10, Armed Forces.

Amendments

2019—Subsec. (d)(1). Pub. L. 116–92 amended par. (1) generally. Prior to amendment, text read as follows: "Except as provided in paragraph (2), the total number of students that the head of an agency may appoint under this section during a fiscal year may not exceed the number equal to 15 percent of the number of students that the agency head appointed during the previous fiscal year to a position in the competitive service at the GS–11 level, or an equivalent level, or below."

SUBCHAPTER II—THE SENIOR EXECUTIVE SERVICE

§3131. The Senior Executive Service

It is the purpose of this subchapter to establish a Senior Executive Service to ensure that the executive management of the Government of the United States is responsive to the needs, policies, and goals of the Nation and otherwise is of the highest quality. The Senior Executive Service shall be administered so as to—

(1) provide for a compensation system, including salaries, benefits, and incentives, and for other conditions of employment, designed to attract and retain highly competent senior executives;

(2) ensure that compensation, retention, and tenure are contingent on executive success which is measured on the basis of individual and organizational performance (including such factors as improvements in efficiency, productivity, quality of work or service, cost efficiency, and timeliness of performance and success in meeting equal employment opportunity goals);

(3) assure that senior executives are accountable and responsible for the effectiveness and productivity of employees under them;

(4) recognize exceptional accomplishment;

(5) enable the head of an agency to reassign senior executives to best accomplish the agency's mission;

(6) provide for severance pay, early retirement, and placement assistance for senior executives who are removed from the Senior Executive Service for nondisciplinary reasons;

(7) protect senior executives from arbitrary or capricious actions;

(8) provide for program continuity and policy advocacy in the management of public programs;

Effective Date

"(a)(1) The provisions of this title, other than sections 413 and 414(a) [enacting this subchapter and sections 2101a, 3391 to 3397, 3591 to 3595, 4311 to 4315, 4507, 5381 to 5385, 5752, and 7541 to 7543 of this title, amending sections 2102, 2103, 2108, 3109, 3501, 5311, 5331, 5504, 5541, 5595, 5723, 6304, 8336, and 8339 of this title, and enacting provisions set out as a note under section 5311 of this title], shall take effect 9 months after the date of the enactment of this Act [Oct. 13, 1978].

"(2) The provisions of section 413 of this title [set out as a note under section 3133 of this title] shall take effect on the date of the enactment of this Act [Oct. 13, 1978].

"(3) The provisions of section 414(a) of this title [amending sections 3104 and 5108 of this title and enacting provisions set out as notes under sections 3104 and 5108 of this title] shall take effect 180 days after the date of the enactment of this Act [Oct. 13, 1978].

"(b)(1) The amendments made by sections 401 through 412 of this title [enacting this subchapter and sections 2101a, 3391 to 3397, 3591 to 3595, 4311 to 4315, 4507, 5381 to 5385, 5752, and 7541 to 7543 of this title, amending sections 2102, 2103, 2108, 3109, 3501, 5311, 5331, 5504, 5541, 5595, 5723, 6304, 8336, and 8339 of this title] shall continue to have effect unless, during the first period of 60 calendar days of continuous session of the Congress beginning after 5 years after the effective date of such amendments, a concurrent resolution is introduced and adopted by the Congress disapproving the continuation of the Senior Executive Service. Such amendments shall cease to have effect on the first day of the first fiscal year beginning after the date of the adoption of such concurrent resolution.

"(2) The continuity of a session is broken only by an adjournment of the Congress sine die, and the days on which either House is not in session because of an adjournment of more than 3 days to a day certain are excluded in the computation of the 60-day period.

"(3) The provisions of subsections (d), (e), (f), (g), (h), (i), (j), and (k) of section 5305 of title 5, United States Code, shall apply with respect to any concurrent resolution referred to in paragraph (1) of this subsection, except that for the purpose of this paragraph the reference in such subsection (e) to 10 calendar days shall be considered a reference to 30 calendar days.

"(4) During the 5-year period referred to in paragraph (1) of this subsection, the Director of the Office of Personnel Management shall include in each report required under section 3135 of title 5, United States Code (as added by this title) an evaluation of the effectiveness of the Senior Executive Service and the manner in which such Service is administered."

Ex. Ord. No. 13714. Strengthening the Senior Executive Service

Ex. Ord. No. 13714, Dec. 15, 2015, 80 F.R. 79225, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to strengthen the recruitment, hiring, and development of the Federal Government's senior executives; I hereby order as follows:

Section 1. Policy. It is in the national interest to facilitate career executive continuity between administrations; to increase senior leadership attention to, and involvement in, executive recruitment; to reduce unnecessary burdens on applicants for executive positions; and to efficiently document demonstrated executive experience. Furthermore, it is imperative to periodically explore and promote new selection methods that effectively and efficiently identify the most capable and talented candidates for executive leadership positions to enhance the breadth and diversity of experiences among our Federal executives; to better support, recognize, and reward our executives, especially our top performers; and to strengthen executive accountability, all while maintaining a system that is focused on the public interest and free from improper political influence. An important aspect of strengthening our Senior Executive Service (SES) members is valuing the work they do every day, rewarding excellence, professionalism, and outstanding achievement through special act awards, Presidential Rank Awards, and other non-monetary and honorary awards. Consistent with the requirements of Executive Order 13583 of August 18, 2011 (Establishing a Coordinated Government-Wide Initiative to Promote Diversity and Inclusion in the Federal Workforce), and with merit-based principles, this order continues to support executive departments and agencies (agencies) to develop and implement a comprehensive, integrated, and strategic focus on diversity and inclusion as a key component of the recruitment, hiring, retention, and development of their SES cadre. Pursuing these goals will significantly improve the Federal Government's ability to serve the American people. Unless otherwise noted, this order applies to career members of the SES.

Section 2 of this order establishes, under the President's Management Council (PMC), a Subcommittee to advise the Office of Personnel Management (OPM), the PMC, and the President on senior executive matters, help monitor execution of an important set of executive reforms contained in section 3 of this order, and help keep the Federal Government's executive management practices current and effective. In order to identify and maximize the use of best practices, requirements in sections [sic] 3(b)(i)–(iv) of this order will be implemented in three phases, with Phase I consisting of seven agencies, which will execute those reforms in fiscal year (FY) 2016; Phase II consisting of seven agencies, which will execute those reforms in FY 2017; and Phase III consisting of all other agencies, which will execute those reforms in FY 2018.

Sec. 2. Establishment of PMC Subcommittee to Strengthen the Senior Executive Service. There is established the PMC Subcommittee to Strengthen the Senior Executive Service (Subcommittee) to inform and support Government-wide priorities for improved management of senior executives identified by the Deputy Director for Management of the Office of Management and Budget (OMB) in consultation with the Director of OPM. The Subcommittee shall consist of five members of the PMC: the Deputy Director for Management of OMB, the Director of OPM, and three other members of the PMC. The Subcommittee will be advised by at least two career members of the SES to be determined by the members of the Subcommittee, and shall collaborate with the Chief Human Capital Officers Council. Expressions of interest to serve on the Subcommittee will be solicited, and final selections will be made by the Deputy Director for Management of OMB in consultation with the Director of OPM. The Subcommittee will advise OPM, members of the PMC, and the President on ways to strengthen and improve the SES workforce, as outlined in this order. In addition, it will identify any Government-wide obstacles it perceives to executive management, assist OPM in facilitating career executive continuity between administrations, and facilitate communication among the SES cadre.

Sec. 3. Requirements. Under the direction, or, in the case of sections 3(a)(i) and 3(b)(ii) of this order, the guidance, of the Director of OPM, and in consultation with OMB and the PMC Subcommittee, agencies shall undertake the following actions:

(a) Actions for Immediate Government-wide Implementation.

(i) Starting in FY 2017, agencies should limit their aggregate spending on agency performance awards for SES and Senior Level (SL) and Senior Scientific or Professional (ST) employees to 7.5 percent of aggregate SES and SL/ST salaries respectively. OMB and OPM shall undertake a review of, and revise as appropriate, their current guidance regarding aggregate spending on such awards. In addition, agencies should allocate awards in a manner that provides meaningfully greater rewards to top performers. Within 120 days of the date of this order, OPM shall issue, as appropriate, additional guidance regarding the distribution of such awards.

(ii) The heads of agencies with SES positions that supervise General Schedule (GS) employees shall implement policies, as permitted by and consistent with applicable law and regulation, for initial pay setting and pay adjustments, as appropriate, for career SES appointees to result in compensation exceeding the rates of pay, including locality pay, of their subordinate GS employees. Similar policies shall be implemented by heads of agencies for Senior Professional (i.e., SL or ST) employees that supervise GS employees. Such policies and practices support, recognize, and reward agency executives, especially top performers, in a manner commensurate with their roles, responsibilities, and contributions, and may increase the competitiveness of SES positions with comparable positions outside of Government.

(iii) Within 90 days of the date of this order, OPM shall evaluate the current Qualifications Review Board (QRB) process and issue guidance to agencies about materials that would be acceptable for QRB consideration and that will serve as an alternative or replacement to the current lengthy essay requirement for QRB submission, which may deter qualified applicants for SES positions or put an additional burden on human resources staff. The guidance shall also advise agencies about ways to streamline their initial application requirements for SES positions, including evaluation of options, such as allowing individuals to apply by only submitting a resume-based application and any additional materials necessary to determine relevant qualifications, consistent with the new QRB submission requirements.

(iv) Within 120 days of OPM issuing the guidance described in section 3(a)(iii) of this order, the heads of agencies with SES positions shall examine the agency's career SES hiring process and make changes to the process to make it more efficient, effective, and less burdensome for all participants. Agencies shall simplify the initial application requirements for SES positions consistent with the guidance issued in section 3(a)(iii) of this order, and should only request critically necessary technical qualifications, with the goal of minimizing requirements that may deter qualified applicants from applying. Agencies shall also monitor time to hire of SES positions, and identify appropriate process improvements or other changes that can help reduce time to hire while ensuring high quality of hires.

(v) By May 31, 2016, the heads of agencies with 20 or more SES positions shall develop and submit to OPM a 2-year plan to increase the number of SES members who are rotating to improve talent development, mission delivery and collaboration. While agency specific targets will not be required, this order establishes a Government-wide goal of 15 percent of SES members rotating for a minimum of 120 days (including to different departments, agencies, subcomponents, functional areas, sectors, and non-federal partners) during FY 2017, and thereafter, in order to ensure the mobility of the corps while also maintaining stability of operations. Within 45 days of the date of this order, OPM shall issue guidance for implementation of section 3(a)(v) of this order. OPM shall evaluate the percentages set forth in this subsection on an ongoing basis and make adjustments as necessary and appropriate. These plans shall take into consideration the policy priorities of the agency, agency needs and rules in the context of administration transitions, needs identified in agency hiring plans and succession plans, the development opportunities listed in individuals' Executive Development Plans (EDP), and the Federal Government's interest in cultivating generalist executives with broad and diverse experiences who can lead a variety of organizations. These plans shall build on existing succession management processes and those established in section 3(b)(i) of this order to ensure high potential and top performers have an opportunity to cycle through rotations. These plans shall also incorporate, as appropriate, flexibilities agencies have such as the Intergovernmental Personnel Act (implemented in 5 CFR part 334) to encourage SES members to pursue temporary assignments to State and local governments, colleges and universities, tribal governments, and other eligible organizations, and to better understand the impact of the Federal Government's work on those it serves. Finally, these plans shall include an assessment of the degree to which these rotation assignments achieve the desired goals for the individual and agency.

(b) Actions for Phased Implementation. Under the direction, or, in the case of section 3(b)(ii) of this order, the guidance, of the Director of OPM, in consultation with OMB and the PMC Subcommittee, the reforms listed in sections [sic] 3(b)(i)–(iv) of this order shall be implemented by agencies on the following schedule: the Secretaries of Defense, Energy, Health and Human Services, Housing and Urban Development, and Veterans Affairs; the Administrator of General Services; and the Director of OPM shall implement these reforms by September 30, 2016; the Secretaries of Agriculture, Education, Labor, and Transportation, and the Administrators of the National Aeronautics and Space Administration, the Environmental Protection Agency, and the Small Business Administration shall implement these reforms by September 30, 2017; the Secretaries of State, the Treasury, the Interior, Commerce, and Homeland Security, the Attorney General, and the Administrator of the U.S. Agency for International Development, as well as the Directors of OMB and the National Science Foundation, shall implement these reforms by September 30, 2018. By October 1 of each year, OPM shall issue additional guidance after each phase of implementation that reflects lessons learned and any adjustments to these reforms based on the agencies that have implemented them. By the respective date specified above, the heads of agencies shall:

(i) Establish an annual talent management and succession planning process to assess the development needs of all SES members, and SL and ST employees as appropriate, to inform readiness decisions about hiring, career development, and executive reassignments and rotations. These assessments shall include input from each executive, as well as the executive's supervisor, and shall be used to recommend development activities and inform the organization's succession planning, decisions about duty assignments, and agency hiring plans;

(ii) Proactively recruit individuals for vacant SES positions and regularly review those recruitment efforts at the Deputy Secretary (or direct designee) level on at least a quarterly basis, consistent with existing rules and regulations. Establish a mechanism to track, and raise for appropriate senior-level attention, information about each position that agencies are seeking to fill, including, at a minimum, source of the recruitment, number, quality and diversity (as available) of applicants, source of applicants (subcomponent, agency or non-government), and timeliness of the hiring process. Use the talent management and succession planning process described in section 3(b)(i) of this order and agency hiring plans to inform these recruitment efforts; and develop a tailored outreach strategy for proactive recruitment for key strategic positions;

(iii) Require supervisors of executives in their agency to work with their subordinate executives to update EDPs for each executive required by 5 CFR part 412.401, to include at least one developmental activity annually and at least one leadership assessment involving employee feedback (for example, 360 degree-type reviews) every 3 years to inform each executive's developmental needs. In addition, non-career SES and equivalent appointees should also have one leadership assessment during their first 2 years, and additional assessments every 3 years thereafter; and

(iv) Establish a formal Executive Onboarding Program informed by OPM's Enhanced Executive Onboarding Model and Government-Wide Executive Onboarding Framework, which shall provide critical support and guidance to executives through their first year of service in new positions, consistent with guidance to be issued by OPM no later than 60 days after the date of this order. Onboarding shall be provided for career and non-career SES, SL and ST employees, and SES-equivalent positions.

Sec. 4. Additional Implementation Considerations. (a) Actions for Agencies with SES-Equivalent Positions. Certain agencies have independent authorities enabling them to establish positions that are equivalent to SES or Senior Professional positions, or an executive personnel system that includes such positions. Whether the positions or employment systems are established in title 5 (for example, FBI/DEA SES) or in other titles of the United States Code (for example, Senior Foreign Service, Defense Intelligence SES, Senior National Intelligence Service), the agency head shall determine the extent to which the agency implements policies and processes to support objectives identified in sections 3(a) and 3(b) of this order for such positions consistent with the agency's authorities and purposes for which the law provides them, with such consultation with the Director of OPM, OMB, and the PMC Subcommittee as the agency may require.

(b) Agency Status and Reporting. Within 45 days of the date of this order, OPM will issue guidance, concurrent with guidance in section 3(a)(v) of this order, that defines regular reporting on the status of each agency's implementation of the provisions in this order.

Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.

§3132. Definitions and exclusions

(a) For the purpose of this subchapter—

(1) "agency" means an Executive agency, except a Government corporation and the Government Accountability Office, but does not include—

(A) any agency or unit thereof excluded from coverage by the President under subsection (c) of this section; or

(B) the Federal Bureau of Investigation, the Drug Enforcement Administration, the Central Intelligence Agency, the Office of the Director of National Intelligence, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, Department of Defense intelligence activities the civilian employees of which are subject to section 1590 of title 10, and, as determined by the President, an Executive agency, or unit thereof, whose principal function is the conduct of foreign intelligence or counterintelligence activities;

(C) the Federal Election Commission or the Election Assistance Commission;

(D) the Office of the Comptroller of the Currency, the Office of Thrift Supervision,,1 the Resolution Trust Corporation, the Farm Credit Administration, the Federal Housing Finance Agency, the National Credit Union Administration, the Bureau of Consumer Financial Protection, and the Office of Financial Research;

(E) the Securities and Exchange Commission; or

(F) the Commodity Futures Trading Commission;

(2) "Senior Executive Service position" means any position in an agency which is classified above GS–15 pursuant to section 5108 or in level IV or V of the Executive Schedule, or an equivalent position, which is not required to be filled by an appointment by the President by and with the advice and consent of the Senate, and in which an employee—

(A) directs the work of an organizational unit;

(B) is held accountable for the success of one or more specific programs or projects;

(D) supervises the work of employees other than personal assistants; or

(E) otherwise exercises important policy-making, policy-determining, or other executive functions;

but does not include—

(i) any position in the Foreign Service of the United States;

(ii) an administrative law judge position under section 3105 of this title;

(iii) any position established as a qualified position in the excepted service by the Secretary of Homeland Security under section 226 2 of the Homeland Security Act of 2002; or

(iv) any position established as a qualified position in the excepted service by the Secretary of Defense under section 1599f of title 10;

(3) "senior executive" means a member of the Senior Executive Service;

(4) "career appointee" means an individual in a Senior Executive Service position whose appointment to the position or previous appointment to another Senior Executive Service position was based on approval by the Office of Personnel Management of the executive qualifications of such individual;

(5) "limited term appointee" means an individual appointed under a nonrenewable appointment for a term of 3 years or less to a Senior Executive Service position the duties of which will expire at the end of such term;

(6) "limited emergency appointee" means an individual appointed under a nonrenewable appointment, not to exceed 18 months, to a Senior Executive Service position established to meet a bona fide, unanticipated, urgent need;

(7) "noncareer appointee" means an individual in a Senior Executive Service position who is not a career appointee, a limited term appointee, or a limited emergency appointee;

(8) "career reserved position" means a position which is required to be filled by a career appointee and which is designated under subsection (b) of this section; and

(9) "general position" means any position, other than a career reserved position, which may be filled by either a career appointee, noncareer appointee, limited emergency appointee, or limited term appointee.

(b)(1) For the purpose of paragraph (8) of subsection (a) of this section, the Office shall prescribe the criteria and regulations governing the designation of career reserved positions. The criteria and regulations shall provide that a position shall be designated as a career reserved position only if the filling of the position by a career appointee is necessary to ensure impartiality, or the public's confidence in the impartiality, of the Government. The head of each agency shall be responsible for designating career reserved positions in such agency in accordance with such criteria and regulations.

(2) The Office shall periodically review general positions to determine whether the positions should be designated as career reserved. If the Office determines that any such position should be so designated, it shall order the agency to make the designation.

(3) Notwithstanding the provisions of any other law, any position to be designated as a Senior Executive Service position (except a position in the Executive Office of the President) which—

(A) is under the Executive Schedule, or for which the rate of basic pay is determined by reference to the Executive Schedule, and

(B) on the day before the date of the enactment of the Civil Service Reform Act of 1978 was specifically required under section 2102 of this title or otherwise required by law to be in the competitive service,

shall be designated as a career reserved position if the position entails direct responsibility to the public for the management or operation of particular government programs or functions.

(4) Not later than March 1 of each year, the head of each agency shall publish in the Federal Register a list of positions in the agency which were career reserved positions during the preceding calendar year.

(c) An agency may file an application with the Office setting forth reasons why it, or a unit thereof, should be excluded from the coverage of this subchapter. The Office shall—

(1) review the application and stated reasons,

(2) undertake a review to determine whether the agency or unit should be excluded from the coverage of this subchapter, and

(3) upon completion of its review, recommend to the President whether the agency or unit should be excluded from the coverage of this subchapter.

If the Office recommends that an agency or unit thereof be excluded from the coverage of this subchapter, the President may, on written determination, make the exclusion for the period determined by the President to be appropriate.

(d) Any agency or unit which is excluded from coverage under subsection (c) of this section shall make a sustained effort to bring its personnel system into conformity with the Senior Executive Service to the extent practicable.

(e) The Office may at any time recommend to the President that any exclusion previously granted to an agency or unit thereof under subsection (c) of this section be revoked. Upon recommendation of the Office, the President may revoke, by written determination, any exclusion made under subsection (c) of this section.

(f) If—

(1) any agency is excluded under subsection (c) of this section, or

(2) any exclusion is revoked under subsection (e) of this section,

the Office shall, within 30 days after the action, transmit to the Congress written notice of the exclusion or revocation.

Amendments

2013—Subsec. (a)(1)(B). Pub. L. 112–277 inserted "the Office of the Director of National Intelligence," after "the Central Intelligence Agency,".

2010—Subsec. (a)(1)(D). Pub. L. 111–203 substituted "the National Credit Union Administration, the Bureau of Consumer Financial Protection, and the Office of Financial Research;" for "and the National Credit Union Administration;".

Subsec. (a)(1)(D). Pub. L. 110–289, §1161(g)(2)(B), struck out "the Federal Housing Finance Board" after "the Office of Thrift Supervision,", substituted "the Federal Housing Finance Agency" for "the Office of Federal Housing Enterprise Oversight of the Department of Housing and Urban Development", and struck out "or or" at end.

Subsec. (a)(2)(iii). Pub. L. 100–235, §2(c)(2), struck out cl. (iii) which read as follows: "any position in the Drug Enforcement Administration which is excluded from the competitive service under section 201 of the Crime Control Act of 1976 (5 U.S.C. 5108 note; 90 Stat. 2425);".

Effective Date of 2010 Amendment

Amendment by Pub. L. 111–203 effective 1 day after July 21, 2010, except as otherwise provided, see section 4 of Pub. L. 111–203, set out as an Effective Date note under section 5301 of Title 12, Banks and Banking.

Effective Date of 2002 Amendments

Amendment by Pub. L. 107–252 effective upon appointment of all members of the Election Assistance Commission under section 20923 of Title 52, Voting and Elections, see section 21134(a) of Title 52.

Amendment by Pub. L. 107–123 effective Oct. 1, 2001, see section 11 of Pub. L. 107–123, set out as a note under section 78ee of Title 15, Commerce and Trade.

Effective Date of 1996 Amendment

Amendment by Pub. L. 104–201 effective Oct. 1, 1996, see section 1124 of Pub. L. 104–201, set out as a note under section 193 of Title 10, Armed Forces.

Effective Date of 1990 Amendment

Amendment by Pub. L. 101–509 effective on such date as the President shall determine, but not earlier than 90 days, and not later than 180 days, after Nov. 5, 1990, see section 529 [title III, §305] of Pub. L. 101–509, set out as a note under section 5301 of this title.

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–187 effective on Jan. 8, 1980, see section 301(a) of Pub. L. 96–187, set out as a note under section 30101 of Title 52, Voting and Elections.

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b), of Pub. L. 95–454, set out as a note under section 3131 of this title.

§3133. Authorization of positions; authority for appointment

(1) examine its needs for Senior Executive Service positions for each of the 2 fiscal years beginning after such calendar year; and

(2) submit to the Office of Personnel Management a written request for a specific number of Senior Executive Service positions for each of such fiscal years.

(b) Each agency request submitted under subsection (a) of this section shall—

(1) be based on the anticipated type and extent of program activities and budget requests of the agency for each of the 2 fiscal years involved, and such other factors as may be prescribed from time to time by the Office; and

(2) identify, by position title, positions which are proposed to be designated as or removed from designation as career reserved positions, and set forth justifications for such proposed actions.

(c) The Office of Personnel Management, in consultation with the Office of Management and Budget, shall review the request of each agency and shall authorize, for each of the 2 fiscal years covered by requests required under subsection (a) of this section, a specific number of Senior Executive Service positions for each agency. Beginning in 2023, the number of such positions authorized under the preceding sentence for the Department of Defense may not exceed the limitation provided in section 1109 of the National Defense Authorization Act for Fiscal Year 2017.

(d)(1) The Office of Personnel Management may, on a written request of an agency or on its own initiative, make an adjustment in the number of positions authorized for any agency. Each agency request under this paragraph shall be submitted in such form, and shall be based on such factors, as the Office shall prescribe.

(2) The total number of positions in the Senior Executive Service may not at any time during any fiscal year exceed 105 percent of the total number of positions authorized under subsection (c) of this section for such fiscal year.

(e)(1) Not later than July 1, 1979, and from time to time thereafter as the Director of the Office of Personnel Management finds appropriate, the Director shall establish, by rule issued in accordance with section 1103(b) of this title, the number of positions out of the total number of positions in the Senior Executive Service, as authorized by this section or section 413 of the Civil Service Reform Act of 1978, which are to be career reserved positions. Except as provided in paragraph (2) of this subsection, the number of positions required by this subsection to be career reserved positions shall not be less than the number of the positions then in the Senior Executive Service which, before the date of such Act, were authorized to be filled only through competitive civil service examination.

(2) The Director may, by rule, designate a number of career reserved positions which is less than the number required by paragraph (1) of this subsection only if the Director determines such lesser number necessary in order to designate as general positions one or more positions (other than positions described in section 3132(b)(3) of this title) which—

(A) involve policymaking responsibilities which require the advocacy or management of programs of the President and support of controversial aspects of such programs;

(B) involve significant participation in the major political policies of the President; or

(C) require the senior executives in the positions to serve as personal assistants of, or advisers to, Presidential appointees.

The Director shall provide a full explanation for his determination in each case.

References in Text

Section 1109 of the National Defense Authorization Act for Fiscal Year 2017, referred to in subsec. (c), is section 1109 of Pub. L. 114–328, set out as a note below.

Section 413 of the Civil Service Reform Act of 1978, referred to in subsec. (e)(1), is section 413 of Pub. L. 95–454, set out as a note below.

The date of such Act, referred to in subsec. (e)(1), probably means Oct. 13, 1978, the date of the enactment of the Civil Service Reform Act of 1978.

Amendments

2016—Subsec. (c). Pub. L. 114–328 inserted at end "Beginning in 2023, the number of such positions authorized under the preceding sentence for the Department of Defense may not exceed the limitation provided in section 1109 of the National Defense Authorization Act for Fiscal Year 2017."

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b), of Pub. L. 95–454, set out as a note under section 3131 of this title.

Limitation on Number of DOD SES Positions

"(1) In general.—Not later than December 31, 2022, the total number of Senior Executive Service positions authorized under section 3133 of title 5, United States Code, for the Department of Defense may not exceed 1,260.

"(2) Highly qualified experts.—Of the total number of positions authorized under paragraph (1), not more than 200 of such positions may be occupied by an individual appointed under the authority provided in section 9903 of such title.

"(b) Plan to Achieve Required Limitation.—

"(1) In general.—The Secretary of Defense shall develop a plan to achieve the limitation required by subsection (a) that includes—

"(A) the distribution of Senior Executive Service positions across the Office of the Secretary of Defense, the Joint Staff, the Military Departments, the Defense Agencies and Field Activities, the unified and specified combatant commands, and other key elements of the Department of Defense;

"(B) the by-year reductions to Senior Executive Service positions consistent with the distribution required under subparagraph (A); and

"(C) recommendations for any legislative action that may be necessary for personnel management and shaping authorities to achieve the required limitation.

"(2) Submission of plan.—Not less than one year after the date of the enactment of this Act [Dec. 23, 2016], the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report setting forth the plan developed under paragraph (1).

"(3) Progress reports.—The Secretary of Defense shall provide to the Committees on Armed Services of the Senate and the House of Representatives semi-annual progress report briefings describing and assessing the progress of the Secretary in implementing the plan developed under paragraph (1).

"(c) Conforming Amendment.—[Amended section 3133(c) of this title.]

"(d) Definition of Senior Executive Service Position.—In this section, the term 'Senior Executive Service position' has the meaning given such term in section 3132(a)(2) of title 5, United States Code."

Conversion to Senior Executive Service

"(a) For the purpose of this section, 'agency', 'Senior Executive Service position', 'career appointee', 'career reserved position', 'limited term appointee', 'noncareer appointee', and 'general position' have the meanings set forth in section 3132(a) of title 5, United States Code (as added by this title) and 'Senior Executive Service' has the meaning set forth in section 2101a of such title 5 (as added by this title).

"(b)(1) Under the guidance of the Office of Personnel Management, each agency shall—

"(A) designate those positions which it considers should be Senior Executive Service positions and designate which of those positions it considers should be career reserved positions; and

"(B) submit to the Office a written request for—

"(i) a specific number of Senior Executive Service positions; and

"(ii) authority to employ a specific number of noncareer appointees.

"(2) The Office of Personnel Management shall review the designations and requests of each agency under paragraph (1) of this subsection, and shall establish interim authorizations in accordance with sections 3133 and 3134 of title 5, United States Code (as added by this Act), and shall publish the titles of the authorized positions in the Federal Register.

"(c)(1) Each employee serving in a position at the time it is designated as a Senior Executive Service position under subsection (b) of this section shall elect to—

"(A) decline conversion and be appointed to a position under such employee's current type of appointment and pay system, retaining the grade, seniority, and other rights and benefits associated with such type of appointment and pay system; or

"(B) accept conversion and be appointed to a Senior Executive Service position in accordance with the provisions of subsections (d), (e), (f), (g), and (h) of this section.

The appointment of an employee in an agency because of an election under subparagraph (A) of this paragraph shall not result in the separation or reduction in grade of any other employee in such agency.

"(2) Any employee in a position which has been designated a Senior Executive Service position under this section shall be notified in writing of such designation, the election required under paragraph (1) of this subsection, and the provisions of subsections (d), (e), (f), (g), and (h) of this section. The employee shall be given 90 days from the date of such notification to make the election under paragraph (1) of this subsection.

"(d) Each employee who has elected to accept conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section and who is serving under—

"(1) a career or career-conditional appointment; or

"(2) a similar type of appointment in an excepted service position, as determined by the Office;

in a position which is designated as a Senior Executive Service position shall be appointed as a career appointee to such Senior Executive Service position without regard to section 3393(b)–(e) of title 5, United States Code (as added by this title).

"(e) Each employee who has elected conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section and who is serving under an excepted appointment in a position which is not designated a career reserved position in the Senior Executive Service, but is—

"(1) a position in Schedule C of subpart C of part 213 of title 5, Code of Federal Regulations;

"(2) a position filled by noncareer executive assignment under subpart F of part 305 of title 5, Code of Federal Regulations; or

"(3) a position in the Executive Schedule under subchapter II of chapter 53 of title 5, United States Code [section 5311 et seq. of this title], other than a career Executive Schedule position;

shall be appointed as a noncareer appointee to a Senior Executive Service position.

"(f) Each employee who has elected conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section, who is serving in a position described in paragraph (1), (2), or (3) of subsection (e) of this section, and whose position is designated as a career reserved position under subsection (b) of this section shall be appointed as a noncareer appointee to an appropriate general position in the Senior Executive Service or shall be separated.

"(g) Each employee who has elected conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section, who is serving in a position described in paragraph (1), (2), or (3) of subsection (e) of this section, and whose position is designated as a Senior Executive Service position and who has reinstatement eligibility to a position in the competitive service, may, on request to the Office, be appointed as a career appointee to a Senior Executive Service position. The name of, and basis for reinstatement eligibility for, each employee appointed as a career appointee under this subsection shall be published in the Federal Register.

"(h) Each employee who has elected conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section and who is serving under a limited executive assignment under subpart F of part 305 of title 5, Code of Federal Regulations, shall—

"(1) be appointed as a limited term appointee to a Senior Executive Service position if the position then held by such employee will terminate within 3 years of the date of such appointment;

"(2) be appointed as a noncareer appointee to a Senior Executive Service position if the position then held by such employee is designated as a general position; or

"(3) be appointed as a noncareer appointee to a general position if the position then held by such employee is designated as a career reserved position.

"(i) The rate of basic pay for any employee appointed to a Senior Executive Service position under this section shall be greater than or equal to the rate of basic pay payable for the position held by such employee at the time of such appointment.

"(j) Any employee who is aggrieved by any action by any agency under this section is entitled to appeal to the Merit Systems Protection Board under section 7701 of title 5, United States Code (as added by this title). An agency shall take any corrective action which the Board orders in its decision on an appeal under this subsection.

"(k) The Office shall prescribe regulations to carry out the purpose of this section."

§3134. Limitations on noncareer and limited appointments

(a) During each calendar year, each agency shall—

(1) examine its needs for employment of noncareer appointees for the fiscal year beginning in the following year; and

(2) submit to the Office of Personnel Management, in accordance with regulations prescribed by the Office, a written request for authority to employ a specific number of noncareer appointees for such fiscal year.

(b) The number of noncareer appointees in each agency shall be determined annually by the Office on the basis of demonstrated need of the agency. The total number of noncareer appointees in all agencies may not exceed 10 percent of the total number of Senior Executive Service positions in all agencies.

(c) Subject to the 10 percent limitation of subsection (b) of this section, the Office may adjust the number of noncareer positions authorized for any agency under subsection (b) of this section if emergency needs arise that were not anticipated when the original authorizations were made.

(d) The number of Senior Executive Service positions in any agency which are filled by noncareer appointees may not at any time exceed the greater of—

(1) 25 percent of the total number of Senior Executive Service positions in the agency; or

(2) the number of positions in the agency which were filled on the date of the enactment of the Civil Service Reform Act of 1978 by—

(A) noncareer executive assignments under subpart F of part 305 of title 5, Code of Federal Regulations, as in effect on such date, or

(B) appointments to level IV or V of the Executive Schedule which were not required on such date to be made by and with the advice and consent of the Senate.

This subsection shall not apply in the case of any agency having fewer than 4 Senior Executive Service positions.

(e) The total number of limited emergency appointees and limited term appointees in all agencies may not exceed 5 percent of the total number of Senior Executive Service positions in all agencies.

References in Text

The date of enactment of the Civil Service Reform Act of 1978, referred to in subsec. (d)(2), is the date of enactment of Pub. L. 95–454, which was approved Oct. 13, 1978.

Level IV or V of the Executive Schedule, referred to in subsec. (d)(2)(B), are set out in sections 5315 and 5316 of this title.

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b), of Pub. L. 95–454, set out as a note under section 3131 of this title.

§3136. Regulations

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b), of Pub. L. 95–454, set out as a note under section 3131 of this title.

§3151. The Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service

(a) The Attorney General may by regulation establish a personnel system for senior personnel within the Federal Bureau of Investigation and the Drug Enforcement Administration to be known as the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service (hereinafter in this subchapter referred to as the "FBI–DEA Senior Executive Service"). The regulations establishing the FBI–DEA Senior Executive Service shall—

(1) meet the requirements set forth in section 3131 for the Senior Executive Service;

(2) provide that positions in the FBI–DEA Senior Executive Service meet requirements that are consistent with the provisions of section 3132(a)(2);

(3) provide rates of pay for the FBI–DEA Senior Executive Service that are not in excess of the maximum rate or less than the minimum rate of basic pay established for the Senior Executive Service under section 5382 and that are adjusted at the same time and to the same extent as rates of basic pay for the Senior Executive Service are adjusted;

(4) provide a performance appraisal system for the FBI–DEA Senior Executive Service that conforms to the provisions of subchapter II of chapter 43;

(5) provide for—

(A) removal consistent with section 3592;

(B) reduction-in-force procedures consistent with section 3595(a), together with measures to ensure that a member of the FBI–DEA Senior Executive Service may not be removed due to a reduction in force unless reasonable efforts to place such member in another such position are first taken;

(C) procedures in accordance with which any furlough affecting the FBI–DEA Senior Executive Service shall be carried out;

(D) removal or suspension consistent with subsections (a), (b), and (c) of section 7543 (except that any hearing or appeal to which a member of the FBI–DEA Senior Executive Service is entitled shall be held or decided pursuant to procedures established by regulations of the Attorney General); and

(6) permit the payment of performance awards to members of the FBI–DEA Senior Executive Service consistent with the provisions applicable to performance awards under section 5384; and

(7) provide that members of the FBI–DEA Senior Executive Service may be granted sabbatical leaves consistent with the provisions of section 3396(c).

(b) Except as provided in subsection (a), the Attorney General may—

(1) make applicable to the FBI–DEA Senior Executive Service any of the provisions of this title applicable to applicants for or members of the Senior Executive Service; and

(2) appoint, promote, and assign individuals to positions established within the FBI–DEA Senior Executive Service without regard to the provisions of this title governing appointments and other personnel actions in the competitive service.

(c) The President, based on the recommendations of the Attorney General, may award ranks to members of the FBI–DEA Senior Executive Service in a manner consistent with the provisions of section 4507.

(d) Notwithstanding any other provision of this section, the Attorney General may detail or assign any member of the FBI–DEA Senior Executive Service to serve in a position outside the Federal Bureau of Investigation or the Drug Enforcement Administration (as the case may be) in which the member's expertise and experience may be of benefit to the Federal Bureau of Investigation or the Drug Enforcement Administration (as the case may be) or another Government agency. Any such member shall not by reason of such detail or assignment lose any entitlement or status associated with membership in the FBI–DEA Senior Executive Service.

(e) The Attorney General shall each year submit to Congress, at the time the budget is submitted by the President to the Congress for the next fiscal year, a report on the FBI–DEA Senior Executive Service. The report shall include, in the aggregate and by agency—

(1) the number of FBI–DEA Senior Executive Service positions established as of the end of the preceding fiscal year;

(2) the number of individuals being paid at each rate of basic pay for the FBI–DEA Senior Executive Service as of the end of the preceding fiscal year;

(3) the number, distribution, and amount of awards paid to members of the FBI–DEA Senior Executive Service during the preceding fiscal year; and

(4) the number of individuals removed from the FBI–DEA Senior Executive Service during the preceding fiscal year—

References in Text

Provisions of this title governing appointments and other personnel actions in the competitive service, referred to in subsec. (b)(2), are classified generally to section 3301 et seq. of this title.

Amendments

2005—Subsec. (b). Pub. L. 109–108 struck out par. (1) designation before "Except as provided", redesignated subpars. (A) and (B) as pars. (1) and (2), respectively, and struck out former par. (2) which read as follows:

"(A) Notwithstanding any other provision of this section, an individual may not be selected for the FBI–DEA Senior Executive Service unless such individual is a career employee in the civil service.

"(B) For the purpose of subparagraph (A), 'career employee in the civil service' shall have such meaning as the Attorney General, in consultation with the Director of the Office of Personnel Management, by regulation prescribes."

1989—Subsec. (a)(5)(E). Pub. L. 101–194 added subpar. (E).

Effective Date of 1989 Amendment

Pub. L. 101–194, title V, §506(d), Nov. 30, 1989, 103 Stat. 1759, provided that: "The amendments made by this section [enacting section 3393a of this title and amending this section, sections 3393, 3592 to 3594, 7701, 8336, 8339, 8414, and 8421 of this title, section 1601 of Title 10, Armed Forces, section 3945 of Title 22, Foreign Relations and Intercourse, and section 3610 of Title 50, War and National Defense] shall take effect on January 1, 1991."

Amendments

1992—Pub. L. 102–378 amended section generally. Prior to amendment, section read as follows: "Nothing in this subchapter shall be construed to allow the aggregate amount payable to a member of the FBI–DEA Senior Executive Service under this subchapter during any fiscal year to exceed the annual rate payable for positions at level I of the Executive Schedule in effect at the end of such year. This section shall be applied in a manner consistent with paragraphs (1) and (2) of section 5383(b)."

SUBCHAPTER IV—TEMPORARY ORGANIZATIONS ESTABLISHED BY LAW OR EXECUTIVE ORDER

§3161. Employment and compensation of employees

(a) Definition of Temporary Organization.—For the purposes of this subchapter, the term "temporary organization" means a commission, committee, board, or other organization that—

(1) is established by law or Executive order for a specific period not in excess of three years for the purpose of performing a specific study or other project; and

(2) is terminated upon the completion of the study or project or upon the occurrence of a condition related to the completion of the study or project.

(b) Employment Authority.—(1) Notwithstanding the provisions of chapter 51 of this title, the head of a temporary organization may appoint persons to positions of employment in a temporary organization in such numbers and with such skills as are necessary for the performance of the functions required of a temporary organization.

(2) The period of an appointment under paragraph (1) may not exceed three years, except that under regulations prescribed by the Office of Personnel Management the period of appointment may be extended for up to an additional two years.

(3) The positions of employment in a temporary organization are in the excepted service of the civil service.

(c) Detail Authority.—Upon the request of the head of a temporary organization, the head of any department or agency of the Government may detail, on a nonreimbursable basis, any personnel of the department or agency to that organization to assist in carrying out its duties.

(d) Compensation.—(1) The rate of basic pay for an employee appointed under subsection (b) shall be established under regulations prescribed by the Office of Personnel Management without regard to the provisions of chapter 51 and subchapter III of chapter 53 of this title.

(2) The rate of basic pay for the chairman, a member, an executive director, a staff director, or another executive level position of a temporary organization may not exceed the maximum rate of basic pay established for the Senior Executive Service under section 5382 of this title.

(3) Except as provided in paragraph (4), the rate of basic pay for other positions in a temporary organization may not exceed the maximum rate of basic pay for grade GS–15 of the General Schedule under section 5332 of this title.

(4) The rate of basic pay for a senior staff position of a temporary organization may, in a case determined by the head of the temporary organization as exceptional, exceed the maximum rate of basic pay authorized under paragraph (3), but may not exceed the maximum rate of basic pay authorized for an executive level position under paragraph (2).

(5) In this subsection, the term "basic pay" includes locality pay provided for under section 5304 of this title.

(e) Travel Expenses.—An employee of a temporary organization, whether employed on a full-time or part-time basis, may be allowed travel and transportation expenses, including per diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I of chapter 57 of this title, while traveling away from the employee's regular place of business in the performance of services for the temporary organization.

(f) Benefits.—An employee appointed under subsection (b) shall be afforded the same benefits and entitlements as are provided temporary employees under this title.

(g) Return Rights.—An employee serving under a career or career conditional appointment or the equivalent in an agency who transfers to or converts to an appointment in a temporary organization with the consent of the head of the agency is entitled to be returned to the employee's former position or a position of like seniority, status, and pay without grade or pay retention in the agency if the employee—

(1) is being separated from the temporary organization for reasons other than misconduct, neglect of duty, or malfeasance; and

(2) applies for return not later than 30 days before the earlier of—

(A) the date of the termination of the employment in the temporary organization; or

(B) the date of the termination of the temporary organization.

(h) Temporary and Intermittent Services.—The head of a temporary organization may procure for the organization temporary and intermittent services under section 3109(b) of this title.

(i) Acceptance of Volunteer Services.—(1) The head of a temporary organization may accept volunteer services appropriate to the duties of the organization without regard to section 1342 of title 31.

(2) Donors of voluntary services accepted for a temporary organization under this subsection may include the following:

(A) Advisors.

(B) Experts.

(C) Members of the commission, committee, board, or other temporary organization, as the case may be.

(D) A person performing services in any other capacity determined appropriate by the head of the temporary organization.

(3) The head of the temporary organization—

(A) shall ensure that each person performing voluntary services accepted under this subsection is notified of the scope of the voluntary services accepted;

(B) shall supervise the volunteer to the same extent as employees receiving compensation for similar services; and

(C) shall ensure that the volunteer has appropriate credentials or is otherwise qualified to perform in each capacity for which the volunteer's services are accepted.

(4) A person providing volunteer services accepted under this subsection shall be considered an employee of the Federal Government in the performance of those services for the purposes of the following provisions of law:

(A) Chapter 81 of this title, relating to compensation for work-related injuries.

SUBCHAPTER V—PRESIDENTIAL INNOVATION FELLOWS PROGRAM

§3171. Presidential Innovation Fellows Program

(a) Policy.—It is in the national interest for the Government to attract the brightest minds skilled in technology or innovative practices to serve in the Government to work on some of the Nation's biggest and most pressing challenges. This subchapter establishes a program to encourage successful entrepreneurs, executives, and innovators to join the Government and work in close cooperation with Government leaders, to create meaningful solutions that can help save lives and taxpayer money, fuel job creation, and significantly improve how the Government serves the American people.

(b) Establishment.—The Administrator of General Services shall continue the Presidential Innovation Fellows Program (hereinafter referred to as the "Program") to enable exceptional individuals with proven track records to serve time-limited appointments in executive agencies to address some of the Nation's most significant challenges and improve existing Government efforts that would particularly benefit from expertise using innovative techniques and technology.

(c) Administration.—The Program shall be administered by a Director, appointed by the Administrator under authorities of the General Services Administration. The Administrator shall provide necessary staff, resources and administrative support for the Program.

(d) Appointment of Fellows.—The Director shall appoint fellows pursuant to the Program and, in cooperation with executive agencies, shall facilitate placement of fellows to participate in projects that have the potential for significant positive effects and are consistent with the President's goals.

(e) Application Process.—

(1) In general.—The Director shall prescribe the process for applications and nominations of individuals to the Program.

(2) Program standards.—Following publication of these processes, the Director may accept for consideration applications from individuals. The Director shall establish, administer, review, and revise, if appropriate, a Governmentwide cap on the number of fellows. The Director shall establish and publish salary ranges, benefits, and standards for the Program.

(2) Consultation.—Prior to the selection of fellows, the Director shall consult with the heads of executive agencies regarding potential projects and how best to meet those needs. Following such consultation, the Director shall select and appoint individuals to serve as fellows.

(3) Time limitation.—Fellows selected for the Program shall serve under short-term, time-limited appointments. Such fellows shall be appointed for no less than 6 months and no longer than 2 years in the Program. The Director shall facilitate the process of placing fellows at requesting executive agencies.

(g) Responsibilities of Agencies.—Each executive agency shall work with the Director and the Presidential Innovation Fellows Program advisory board established under section 3172 to attempt to maximize the Program's benefits to the agency and the Government, including by identifying initiatives that have a meaningful effect on the people served and that benefit from involvement by one or more fellows. Such agencies shall ensure that each fellow works closely with responsible senior officials for the duration of the assignment.

Transition

Pub. L. 115–1, §2(c), Jan. 20, 2017, 131 Stat. 5, provided that: "The Presidential Innovation Fellows Program established pursuant to Executive Order No. 13704 (5 U.S.C. 3301 note [now 5 U.S.C. 3171 note]) as in existence on the day before the date of enactment of this Act [Jan. 20, 2017] shall be considered the Presidential Innovation Fellows Program described in the amendments made by this Act [enacting this section and section 3172 of this title]."

Ex. Ord. No. 13704. Presidential Innovation Fellows Program

Ex. Ord. No. 13704, Aug. 17, 2015, 80 F.R. 50751, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Policy. It is in the national interest for the Federal Government to attract the brightest minds skilled in technology or innovative practices to serve in the Federal Government to work on some of the Nation's biggest and most pressing challenges. This order establishes a program to encourage successful entrepreneurs, executives, and innovators to join the Federal Government and work in close cooperation with Federal Government leaders, to create meaningful solutions that can help save lives and taxpayer money, fuel job creation, and significantly improve how the Federal Government serves the American people.

Sec. 2. Establishment and Administration. (a) The Administrator of General Services (Administrator) shall establish the Presidential Innovation Fellows Program (Program) to enable exceptional individuals with proven track records to serve time-limited appointments in executive branch departments and agencies (agencies) to address some of the Nation's most significant challenges and improve existing Government efforts that would particularly benefit from expertise using innovative techniques and technology. Individuals selected for the Program shall be known as Presidential Innovation Fellows (Fellows).

(b) The Program shall be administered by a Director, appointed by the Administrator under authorities of the General Services Administration (GSA). GSA shall provide necessary staff, resources and administrative support for the Program to the extent permitted by law and within existing appropriations.

(c) GSA shall appoint the Fellows and, in cooperation with agencies, shall facilitate placement of the Fellows to participate in projects that have the potential for significant positive effects and are consistent with the President's goals.

Sec. 3. Advisory Board. (a) The Administrator shall establish an Advisory Board to advise the Director by recommending such priorities and standards as may be beneficial to fulfill the mission of the Program and assist in identifying potential projects and placements for Fellows. The Advisory Board will not participate in the Fellows' selection process.

(b) The Administrator will designate a representative to serve as the Chair of the Advisory Board. In addition to the Chair, the membership of the Advisory Board shall include the Deputy Director for Management of the Office of Management and Budget, the Director of the Office of Personnel Management, the Office of Management and Budget's Administrator of the Office of Electronic Government, and the Assistant to the President and Chief Technology Officer, or their designees and such other persons as may be designated by the Administrator. Consistent with law, the Advisory Board may consult with industry, academia, or non-profits to ensure the Program is continually identifying opportunities to apply advanced skillsets and innovative practices in effective ways to address the Nation's most significant challenges.

Sec. 4. Application Process. (a) The Director, in accordance with applicable law, shall prescribe the process for applications and nominations of individuals to the Program.

(b) Following publication of these processes, the Director may accept for consideration applications from individuals. The Director shall establish, administer, review, and revise, if appropriate, a Government-wide cap on the number of Fellows.

The Director shall establish and publish salary ranges, benefits, and standards for the Program.

Sec. 5. Selection, Appointment, and Assignment of Fellows. (a) The Director, in accordance with applicable law, shall prescribe appropriate procedures for the selection, appointment, and assignment of Fellows.

(b) Prior to the selection of Fellows, the Director will consult with agencies and executive branch departments, regarding potential projects and how best to meet those needs. Following such consultation, the Director shall select and appoint individuals to serve as Fellows.

(c) The Fellows shall serve under short-term, time-limited appointments. As a general matter, they shall be appointed for no less than 6 months and no longer than 2 years in the Program. The Director shall facilitate the process of placing Fellows at requesting agencies and executive branch departments.

Sec. 6. Responsibilities of Agencies. Each executive branch department or agency, as defined in section 105 of title 5, United States Code, is encouraged to work with the Director and Advisory Board to attempt to maximize the Program's benefits to the department or agency and the Federal Government, including by identifying initiatives that will have a meaningful effect on the people served and that will benefit from involvement by one or more Fellows. Departments and agencies also are encouraged to ensure that each Fellow will work closely with responsible senior officials for the duration of the assignment.

Sec. 7. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to a department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.

§3172. Presidential Innovation Fellows Program advisory board

(a) In General.—The Administrator of General Services shall continue an advisory board to advise the Director of the Presidential Innovation Fellows Program by recommending such priorities and standards as may be beneficial to fulfill the mission of the Presidential Innovation Fellows Program and assist in identifying potential projects and placements for fellows. The advisory board may not participate in the selection process under section 3171(f).

(b) Chair; Membership.—The Administrator shall designate a representative to serve as the Chair of the advisory board. In addition to the Chair, the membership of the advisory board shall include—

(1) the Deputy Director for Management of the Office of Management and Budget;

(2) the Director of the Office of Personnel Management;

(3) the Administrator of the Office of Electronic Government of the Office of Management and Budget;

(4) the Assistant to the President and Chief Technology Officer; and

(5) other individuals as may be designated by the Administrator.

(c) Consultation.—The advisory board may consult with industry, academia, or nonprofits to ensure the Presidential Innovation Fellows Program is continually identifying opportunities to apply advanced skillsets and innovative practices in effective ways to address the Nation's most significant challenges.

SUBCHAPTER VII—AIR TRAFFIC CONTROLLERS

SUBCHAPTER VIII—APPOINTMENT, REASSIGNMENT, TRANSFER, AND DEVELOPMENT IN THE SENIOR EXECUTIVE SERVICE

3391.

Definitions.

3392.

General appointment provisions.

3393.

Career appointments.

[3393a.

Repealed.]

3394.

Noncareer and limited appointments.

3395.

Reassignment and transfer within the Senior Executive Service.

3396.

Development for and within the Senior Executive Service.

3397.

Regulations.

Amendment of Analysis

Pub. L. 115–232, div. A, title XI, §1107(c), (d), Aug. 13, 2018, 132 Stat. 2005, provided that, effective on the date on which the Director of the Office of Personnel Management issues final regulations for implementation, with such regulations due not later than one year after Aug. 13, 2018, this analysis is amended by striking items 3317, 3318, and 3319 and inserting new items 3317 "Competitive service; certification using numerical ratings", 3318 "Competitive service; selection using numerical ratings", and 3319 "Competitive service; selection using category rating". See 2018 Amendment note below.

Pub. L. 115–232, div. A, title V, §573(b), (e), Aug. 13, 2018, 132 Stat. 1779, which amended analysis by adding item 3330d "Appointment of military spouses" and striking out former item 3330d, "Appointment of certain military spouses", was treated as temporary to reflect the probable intent of Congress, notwithstanding termination provision in section 573(e) of Pub. L. 115–232, which effectively undid the amendments made to section 3330d of this title but only provided that the amendment made to this analysis would expire. See Termination Date of 2018 Amendment note set out under section 3330d of this title.

The words "civil service in the executive branch" are substituted for "civil service of the United States" to confirm the grant of authority in view of the definition of "civil service" in section 2101. The word "will" is substituted for "may". The words "for the employment sought" are substituted for "for the branch of service into which he seeks to enter" as the latter are archaic since there are no "branches" within the executive branch. The word "applicant" is substituted for "candidate".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Modifications to National Security Education Program

"(A) the United States Government actively encourages and financially supports the training, education, and development of many United States citizens;

"(B) as a condition of some of those supports, many of those citizens have an obligation to seek either compensated or uncompensated employment in the Federal sector; and

"(C) it is in the United States national interest to maximize the return to the Nation of funds invested in the development of such citizens by seeking to employ them in the Federal sector.

"(2) Policy.—It shall be the policy of the United States Government to—

"(A) establish procedures for ensuring that United States citizens who have incurred service obligations as the result of receiving financial support for education and training from the United States Government and have applied for Federal positions are considered in all recruitment and hiring initiatives of Federal departments, bureaus, agencies, and offices; and

"(B) advertise and open all Federal positions to United States citizens who have incurred service obligations with the United States Government as the result of receiving financial support for education and training from the United States Government."

National Advisory Council on the Public Service

"SECTION 1. SHORT TITLE.

"This Act may be cited as the 'National Advisory Council on the Public Service Act of 1990'.

"SEC. 2. FINDINGS.

"The Congress finds that—

"(1) recognition of the services rendered by Federal employees (hereinafter in this Act referred to as 'national public service') should be accorded a high and continuing place on the national agenda;

"(2) the National Commission on the Public Service, through its good works, has documented the need for greater advocacy on behalf of those performing national public service;

"(3) although public service is an honorable profession, members of the public do not always perceive it favorably;

"(4) serious obstacles often hinder the Government's efforts to recruit and retain the best and the brightest for national public service;

"(5) just as the public has a right to expect Federal employees to adhere to the highest standards of excellence and ethicality, so Federal employees have a right to expect an atmosphere of trust and respect, and a sense of accomplishment from their work; and

"(6) an advisory council is needed to provide the President and the Congress with bipartisan, objective assessments of, and recommendations concerning, the Federal workforce.

"SEC. 3. ESTABLISHMENT.

"There shall be established a council to be known as the National Advisory Council on the Public Service (hereinafter in this Act referred to as the 'Council').

"SEC. 4. FUNCTIONS.

"The Council shall—

"(1) regularly assess the state of the Federal workforce;

"(2) in conjunction with the President, the Congress, and the Judiciary, seek to attract individuals of the highest caliber to careers involving national public service, and encourage them and others of similar distinction who are already part of the Federal workforce to make a continuing commitment to national public service;

"(3) promote better public understanding of the role of Federal employees in implementing Government programs and policies, and otherwise seek to improve the public perception of Federal employees;

"(4) encourage efforts to build student interest in performing national public service (whether those efforts are undertaken at the community level, in the classroom, or otherwise); and

"SEC. 5. MEMBERSHIP.

"(a) Number and Appointment.—The Council shall be composed of 15 members as follows:

"(1) 2 Members of the Senate, 1 of whom shall be appointed by the majority leader of the Senate and the other of whom shall be appointed by the minority leader of the Senate.

"(2) 2 Members of the House of Representatives, 1 of whom shall be appointed by the Speaker of the House of Representatives and the other of whom shall be appointed by the minority leader of the House of Representatives.

"(3) The Director of the Administrative Office of the United States Courts (or his delegate).

"(4) 10 individuals appointed by the President—

"(A) 4 of whom shall be chosen from among officers serving in the executive branch;

"(B) 1 of whom shall be chosen from among career employees in the civil service;

"(C) 1 of whom shall be a Federal employee who is a member of a labor organization (as defined by section 7103(a)(4) of title 5, United States Code); and

"(D) 4 of whom shall be chosen from among members of the public who do not hold any Government office or position.

"(b) Continuation of Membership.—If any member of the Council whose appointment is based on that individual's holding a Government office or position leaves such office or position, or if any member of the Council under subsection (a)(4)(D) is appointed or elected to a Government office or position, that individual may continue to serve as such a member for not longer than the 90-day period beginning on the date of leaving that office or position, or entering into that office or position, as the case may be.

"(c) Terms.—Members of the Council shall be appointed for the life of the Council.

"(d) Vacancies.—A vacancy in the Council shall be filled in the manner in which the original appointment was made.

"(e) Compensation.—(1) Members of the Council shall not be entitled to pay (or, in the case of members holding any Government office or position, pay in addition to any to which they are otherwise entitled for service in such office or position) by virtue of membership on the Council.

"(2) While serving away from their homes or regular places of business in the performance of duties for the Council, members shall be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as authorized by section 5703 of title 5, United States Code, for persons employed intermittently in Government service.

"(f) Quorum.—Eight members of the Council shall constitute a quorum.

"(g) Chairman.—The Chairman of the Council shall be designated by the President from among the members appointed under subsection (a)(4)(D).

"(h) Meetings.—The Council shall meet at the call of the Chairman or a majority of its members, and shall meet on at least a quarterly basis.

"SEC. 6. DIRECTOR AND STAFF; EXPERTS AND CONSULTANTS.

"(a) Director.—With the approval of the Council, the Chairman may appoint a Director and fix the pay of such Director at a rate not to exceed the rate for level IV of the Executive Schedule [5 U.S.C. 5315]. The Director shall be a person who, by reason of demonstrated ability in the area of management, government, or public administration, is especially well qualified to serve.

"(b) Staff.—With the approval of the Chairman, the Director may appoint and fix the pay of such personnel as may be necessary to carry out the functions of the Council. The staff of the Council shall be appointed subject to the provisions of title 5, United States Code, governing appointments in the competitive service, and shall be paid in accordance with the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates.

"(c) Experts and Consultants.—The Council may procure temporary or intermittent services under section 3109(b) of title 5, United States Code, but at rates for individuals not to exceed the daily equivalent of the maximum rate payable under the General Schedule.

"(d) Staff of Federal Agencies.—Upon the request of the Chairman, the head of a Federal agency may detail, on a reimbursable or nonreimbursable basis, any personnel of such agency to the Council to assist the Council in carrying out its functions under this Act.

"SEC. 7. POWERS.

"(a) Mails.—The Council may use the United States mails in the same manner and under the same conditions as other Federal agencies.

"(b) Administrative Support Services.—The Administrator of General Services shall provide to the Council, on a reimbursable basis, such administrative support services as the Council may request.

"(c) Official Data.—The Council may secure directly from any Federal agency information necessary to carry out its functions under this Act. Each such agency is authorized and directed to furnish, to the extent permitted by law, any information requested by the Council.

"(d) Gifts.—The Council—

"(1) may accept money and other property donated, bequeathed, or devised to the Council without condition or restriction (other than that it be used to carry out the work of the Council); and

"(2) may use, sell, or otherwise dispose of any such property to carry out its functions under this Act, except that, upon the termination of the Council, any such property shall be disposed of in accordance with applicable provisions of law governing the disposal of Federal property.

"SEC. 8. REPORTS.

"The Council shall transmit to the President and each House of the Congress—

"(1) within 1 and 2 years, respectively, after the date on which the Council first meets, reports containing its preliminary findings and recommendations; and

"(2) within 3 years after the date on which the Council first meets, a final report containing a detailed statement of the findings and conclusions of the Council, together with its recommendations for such legislation or administrative actions as it considers appropriate.

"SEC. 9. COMMENCEMENT; TERMINATION.

"(a) Commencement.—Appointments under section 5 shall be made, and the Council shall first meet, within 90 days after the date of the enactment of this Act [Aug. 14, 1990].

"(b) Termination.—The Council shall cease to exist upon transmitting its final report under section 8(2).

"SEC. 10. AUTHORIZATION.

"There is authorized to be appropriated such sums as may be necessary to carry out this Act."

By virtue of the authority vested in me by section 1 of the act of November 26, 1940, entitled "Extending the Classified Executive Civil Service of the United States" (54 Stat. 1211), by the Civil Service Act (22 Stat. 403), and by section 1753 of the Revised Statutes of the United States [sections 3301 and 7301 of this title], it is hereby ordered as follows:

Section 1. All offices and positions in the executive civil service of the United States except (1) those that are temporary, (2) those expressly excepted from the provisions of section 1 of the said act of November 26, 1940, (3) those excepted from the classified service under Schedules A and B of the Civil Service Rules, and (4) those which now have a classified status, are hereby covered into the classified civil service of the Government.

Section 2. Section 1 of this order shall become effective on January 1, 1942, except that as to positions affected thereby which are vacant at any time after June 30, 1941, and before January 1, 1942, it shall become effective when the vacancies first exist during such period, and appointments to such vacant positions shall be made in accordance with the Civil Service Rules as amended by section 3 of this order, unless prior express permission is given by the Office of Personnel Management for appointment without regard thereto.

Section 3. (a) Upon consideration of the report of the Committee on Civil Service Improvement (House Document No. 118, 77th Congress) appointed by Executive Order No. 8044 of January 31, 1939, it is hereby found and determined that the regulations and procedures hereinafter prescribed in this section with respect to attorney positions in the classified civil service are required by the conditions of good administration.

(b) There is hereby created in the Office of Personnel Management (hereinafter referred to as the Office) a board to be known as the Board of Legal Examiners (hereinafter referred to as the Board). The Board shall consist of the Solicitor General of the United States and the chief law officer of the Office of Personnel Management, as members ex officio, and nine members to be appointed by the President, four of whom shall be attorneys chosen from the chief officers of the Executive departments, agencies or corporate instrumentalities of the Government, two from the law-teaching profession, and three from attorneys engaged in private practice. The President shall designate the chairman of the Board. Five members shall constitute a quorum, and the Board may transact business notwithstanding vacancies thereon. Members of the Board shall receive no salary as such, but shall be entitled to necessary expenses incurred in the performance of their duties hereunder.

(c) It shall be the duty of the Board to promote the development of a merit system for the recruitment, selection, appointment, promotion, and transfer of attorneys in the classified civil service in accordance with the general procedures outlined in Plan A of the report of the Committee on Civil Service Improvement, appointed by Executive Order No. 8044 of January 31, 1939.

(d) The Board, in consultation with the Office, shall determine the regulations and procedures under this section governing the recruitment and examination of applicants for attorney positions, and the selection, appointment, promotion and transfer of attorneys, in the classified service.

(e) The Office shall in the manner determined by the Board establish a register or registers for attorney positions in the classified service and such positions shall thereafter be filled from such registers as are designated by the Board. Unless otherwise determined by the Board, any register so established shall not be in effect for a period longer than one year from the date of its establishment. Upon request of the Board, the Office shall appoint regional or local boards of examiners composed of persons approved by the Board, within or without the Federal service, to interview and examine applicants as the Board shall direct.

(f) The number of names to be placed upon any register of eligibles for attorney positions shall be limited to the number recommended by the Board; and such registers shall not be ranked according to the ratings received by the eligibles, except that persons entitled to veterans' preference as defined in section 1 of Civil Service Rule VI shall be appropriately designated thereon.

(g) Any person whose name has been placed upon three registers of eligibles covering positions of the same grade, and who has not been appointed therefrom, shall not thereafter be eligible for placement upon any subsequently established register covering positions of such grade.

(h) So far as practicable and consistent with good administration, the eligibles on any register for attorney positions and appointments for such register shall be apportioned among the several States and Territories and the District of Columbia upon the basis of population as ascertained in the last preceding census. The Office shall certify to the appointing officer for each vacancy all the eligibles on the appropriate register except those whose appointment would, in the determination of the Board, be inconsistent with the apportionment policy herein prescribed. The appointing officer shall make selections for any vacancy or vacancies in attorney positions from the register so certified, with sole reference to merit and fitness.

(i) Any position affected by this section may be filled before appropriate registers have been established pursuant to this section only by a person whose appointment is approved by the Board. The Board may require as a condition of its approval that persons thus proposed for appointment pass a noncompetitive examination and may designate examining committees composed of persons within or without the Federal service to conduct such examinations. Persons whose appointment was approved by the Board prior to March 16, 1942, and who pass a noncompetitive examination prescribed by the Board shall be eligible for a classified civil-service status after the expiration of six months from the date of appointment upon compliance with the provisions of Section 6 of Civil Service Rule II other than those provisions relating to examination. Effective March 16, 1942, all appointments to attorney and law clerk (trainee) positions shall be for the duration of the present war and for six months thereafter unless specifically limited to a shorter period.

(j) The incumbent of any attorney position covered into the classified service by section 1 of this order may acquire a classified civil-service status in accordance with the provisions of Section 2(a) of the act of November 26, 1940 (54 Stat. 1211) or, in the discretion of the Board and when applicable, Section 6, of Civil Service Rule II: Provided, That the noncompetitive examination required thereunder shall be prescribed by the Office with the approval of the Board.

(k) The Office with the approval of the Board shall appoint a competent person to act as Executive Secretary to the Board; and the Office shall furnish such further professionals, clerical, stenographic, and other assistants as may be necessary to carry out the provisions of this section.

(l) The Civil Service Rules are hereby amended to the extent necessary to give effect to the provisions of this section.

Section 4. The noncompetitive examinations prescribed pursuant to sections 3 and 6 of this order and section 2(a) of the said act of November 26, 1940, shall, among other things, require any person taking such examination to meet such reasonable standards of physical fitness and personal suitability as the Office of Personnel Management may prescribe.

Section 5. Persons who on the effective date of section 1 of this order are on furlough or leave without pay from any position covered into the classified service by that section may be recalled to duty within one year of the date that they are furloughed or given leave without pay, and may be continued in such positions thereafter but shall not thereby acquire a classified civil-service status. If they are not recalled to duty within the time specified herein, they shall be separated from the service.

Section 6. (a) Any person who, in order to perform active service with the military or naval forces of the United States, has left a position (other than a temporary position) which is covered into the classified civil service under section 1 of this order, shall be reinstated in such position or to a position of like seniority, status, and pay in the same department or agency, and may, upon reinstatement, acquire a classified civil-service status: Provided, (1) that he has been honorably discharged from the military or naval service, (2) that he makes application for reinstatement within 90 days after termination of his service with the armed forces or of hospitalization continuing after discharge for a period of not more than one year, and (3) that he qualifies in such suitable noncompetitive examination as the Office may prescribe.

(b) Any person who, in order to perform active service with the military or naval forces of the United States, has left a position in any department or agency (other than a temporary position) which is covered into the classified civil service under section 1 of this order, may, upon his applications and upon the request of the head of the same or any other department or agency, be reinstated in any position for which the Office finds he is qualified, and upon reinstatement shall acquire a classified civil-service status: Provided, (1) that he has been honorably discharged from the military or naval service, and (2) that he qualifies in such suitable noncompetitive examination as the Office may prescribe.

Section 7. Executive Order No. 8044 of January 31, 1939, is hereby revoked so far as it applies to positions covered into the classified civil service by this order.

Executive Order No. 11114

Ex. Ord. No. 11114, June 24, 1963, 28 F.R. 6485, as amended by Ex. Ord. No. 11162, July 28, 1964, 29 F.R. 10563, which extended the authority of the President's Committee on Equal Employment Opportunity, was superseded by Ex. Ord. No. 11246, Sept. 24, 1965, 30 F.R. 12319, set out as a note under section 2000e of Title 42, The Public Health and Welfare.

Ex. Ord. No. 11141. Discrimination on the Basis of Age

Ex. Ord. No. 11141, Feb. 12, 1964, 29 F.R. 2477, provided:

WHEREAS the principle of equal employment opportunity is now an established policy of our Government and applies equally to all who wish to work and are capable of doing so; and

WHEREAS discrimination in employment because of age, except upon the basis of a bona fide occupational qualification, retirement plan, or statutory requirement, is inconsistent with that principle and with the social and economic objectives of our society; and

WHEREAS older workers are an indispensable source of productivity and experience which our Nation can ill afford to lose; and

WHEREAS President Kennedy, mindful that maximum national growth depends on the utilization of all manpower resources, issued a memorandum on March 14, 1963, reaffirming the policy of the Executive Branch of the Government of hiring and promoting employees on the basis of merit alone and emphasizing the need to assure that older people are not discriminated against because of their age and receive fair and full consideration for employment and advancement in Federal employment; and

WHEREAS, to encourage and hasten the acceptance of the principle of equal employment opportunity for older persons by all sectors of the economy, private and public, the Federal Government can and should provide maximum leadership in this regard by adopting that principle as an express policy of the Federal Government not only with respect to Federal employees but also with respect to persons employed by contractors and subcontractors engaged in the performance of Federal contracts:

NOW, THEREFORE, by virtue of the authority vested in me by the Constitution and statutes of the United States and as President of the United States, I hereby declare that it is the policy of the Executive Branch of the Government that (1) contractors and subcontractors engaged in the performance of Federal contracts shall not, in connection with the employment, advancement, or discharge of employees, or in connection with the terms, conditions, or privileges of their employment, discriminate against persons because of their age except upon the basis of a bona fide occupational qualification, retirement plan, or statutory requirement, and (2) that contractors and subcontractors, or persons acting on their behalf, shall not specify, in solicitations or advertisements for employees to work on Government contracts, a maximum age limit for such employment unless the specified maximum age limit is based upon a bona fide occupational qualification, retirement plan, or statutory requirement. The head of each department and agency shall take appropriate action to enunciate this policy, and to this end the Federal Procurement Regulations and the Armed Services Procurement Regulation shall be amended by the insertion therein of a statement giving continuous notice of the existence of the policy declared by this order.

Lyndon B. Johnson.

Executive Order No. 11162

Ex. Ord. No. 11162, July 28, 1964, 29 F.R. 10563, which related to membership of the President's Committee on Equal Employment Opportunity, was superseded by Ex. Ord. No. 11246, Sept. 24, 1965, 30 F.R. 12319, set out as a note under section 2000e of Title 42, The Public Health and Welfare.

By virtue of the authority vested in me by Section 2 of the Civil Service Act (22 Stat. 403) and Section 1753 of the Revised Statutes of the United States (5 U.S.C. 631) [sections 3301 and 7301 of this title] and as President of the United States, it is hereby ordered as follows—

Section 1. Any employee of the Treasury Department serving under an appointment under Schedule B of the Civil Service Rules in a position concerned with the protection of the life and safety of the President, members of his immediate family, or other persons for whom similar protective services are provided by law (which responsibility is hereinafter referred to as the protective function) may have his appointment converted to a career appointment if:

(1) he has completed at least three years of full-time continuous service in a position concerned with the protective function;

(2) The Secretary of the Treasury, or his designee, recommends the conversion of the employee's appointment within 90 days after the employee meets the service requirements of this section, or within 90 days after the date of this Order, whichever is later;

(3) he shall have passed a competitive examination appropriate for the position he is occupying or meets noncompetitive examination standards the Office of Personnel Management prescribes for his position; and

(4) he meets all other requirements prescribed by the Office pursuant to Section 5 of this Order.

Sec. 2. For the purposes of Section 1—

(1) "full-time continuous service" means service without a break of more than 30 calendar days;

(2) except as provided in paragraph (3) of this section, active service in the Armed Forces of the United States shall be deemed to be full-time continuous service in a position concerned with the protective function if the employee concerned shall have left a position concerned with the protective function to enter the Armed Forces and shall have been re-employed in a position concerned with the protective function within 120 days after he shall have been discharged from the Armed Forces under honorable conditions; and

(3) active service in the Armed Forces shall not be deemed to be full-time continuous service in a position concerned with the protective function if such active service exceeds a total of four years plus any period of additional service imposed pursuant to law.

Sec. 3. Any employee who shall have left a position concerned with the protective function to enter active service in the Armed Forces of the United States, who is re-employed in such a position within 120 days after his discharge under honorable conditions from such service, and who meets the requirements of Section 1 as the result of being credited with his period of active service in the Armed Forces pursuant to Section 2(2), may have his appointment converted if the Secretary of the Treasury or his designee, recommends that conversion within 90 days after his re-employment.

Sec. 4. Whenever the Secretary of the Treasury, or his designee, decides not to recommend conversion of the appointment of an employee under this Order or whenever the Secretary, or his designee, recommends conversion and the employee fails to qualify, the employee shall be separated by the date on which his current Schedule B appointment expires.

Sec. 5. The Office of Personnel Management shall prescribe such regulations as may be necessary to carry out the purposes of this Order.

Ex. Ord. No. 11219. Appointment in Competitive Service of Foreign Service Officers and Employees

By virtue of the authority vested in me by section 1753 of the Revised Statutes [sections 3301 and 7301 of this title] and the Civil Service Act (22 Stat. 403), and as President of the United States, it is hereby ordered as follows:

Section 1. Under regulations and conditions prescribed by the Office of Personnel Management, a present or former member of the Foreign Service may be appointed in the competitive service if he:

(a) Is qualified for the position in the competitive service;

(b) Was appointed in the Foreign Service under authority of the Foreign Service Act of 1946 as amended [former section 801 et seq. of Title 22, Foreign Relations and Intercourse], the Foreign Service Act of 1980 [section 3901 et seq. of Title 22], or legislation that supplements or replaces the latter Act;

(c) Served in the Foreign Service under an unlimited, career-type appointment and, immediately before his separation from that appointment, he completed at least one year of continuous service under one or more nontemporary appointments in the Foreign Service which may include the service that made him eligible for his career-type appointment; and

(d) Is appointed within 3 years after his separation from the Foreign Service, or he completed at least 3 years of substantially continuous service under one or more nontemporary appointments in the Foreign Service immediately before his separation from the unlimited, career-type appointment in that Service which may include the service that made him eligible for such appointment, or he is entitled to preference under section 2 of the Veterans' Preference Act of 1944, as amended [sections 1302 and 2108 of this title].

Sec. 2. (a) Except as provided in paragraph (b) of this section, a person appointed under Section 1 of this Order becomes a career conditional employee.

(b) A person appointed under Section 1 of this Order becomes a career employee when he:

(1) Has completed at least 3 years of substantially continuous service under one or more nontemporary appointments in the Foreign Service immediately before his separation from the unlimited, career-type appointment in that Service which may include the service that made him eligible for such appointment;

(2) Is appointed to a position in the competitive service required by law or Executive order to be filled on a permanent or career basis; or

(3) Has completed the service requirement for career tenure in the competitive service.

For the purpose of subparagraph (3) of this paragraph, service in the Foreign Service is creditable in meeting the service requirement only if the person concerned is appointed to a nontemporary position in the competitive service under Section 1 of this Order within 30 days after his separation from the Foreign Service.

Sec. 3. A person appointed to a nontemporary position in the competitive service under Section 1 of this Order acquires a competitive status automatically on appointment.

Sec. 4. Any law, Executive order, or regulation that would disqualify an applicant for appointment in the competitive service shall also disqualify a person for appointment under Section 1 of this Order.

Sec. 5. For the purpose of this Order, a person is deemed to be a member of the "Foreign Service" if he was appointed in any agency under authority of the Foreign Service Act of 1946, as amended [former section 801 et seq. of Title 22, Foreign Relations and Intercourse], the Foreign Service Act of 1980 [section 3901 et seq. of Title 22], or legislation that supplements or replaces the latter Act.

Executive Order No. 11315

Ex. Ord. No. 11315, Nov. 17, 1966, 31 F.R. 14729, as amended by Ex. Ord. No. 12107, §2–101(a), Dec. 28, 1978, 44 F.R. 1055, added Civil Service Rule IX and amended Civil Service Rule VI, provided for transition to the full establishment of executive assignments under Rule IX, and delegated responsibility for the administration of the executive assignment system established by this Order to the Office of Personnel Management and heads of agencies affected by Rule IX. Civil Service Rule IX, as established by this Order, was revoked by Ex. Ord. No. 12748, §8(a), Feb. 1, 1991, 56 F.R. 4521, set out under section 5301 of this title.

Executive Order No. 11598

Ex. Ord. No. 11598, June 16, 1971, 36 F.R. 11711, formerly set out as a note under this section, which related to the listing of certain job vacancies by federal agencies and government contractors and subcontractors, was superseded by Ex. Ord. No. 11701, Jan. 24, 1973, 38 F.R. 2675, set out as a note under section 4212 of Title 38, Veterans' Benefits.

Ex. Ord. No. 11955. Career or Career-Conditional Appointment to Certain Qualified Employees of National Aeronautics and Space Administration

By virtue of the authority vested in me by section 3301 of title 5 of the United States Code [this section], and as President of the United States of America, it is hereby ordered as follows:

Section 1. The appointment of a Command Pilot, Pilot or Mission Specialist candidate to a position in the Space Shuttle Astronaut Program of the National Aeronautics and Space Administration, which is listed under Schedule B of the Schedule of Excepted Positions, may be converted to career or career-conditional appointment if:

(a) the candidate has successfully completed two years of service as a candidate in an appropriate training program;

(b) the Administrator of the National Aeronautics and Space Administration, or the Administrator's designee, recommends the conversion of the candidate's appointment within ninety days of completion of the requirements of section 1(a);

(c) the candidate meets noncompetitive examination standards prescribed by the Office of Personnel Management; and

(d) the candidate meets all other requirements prescribed by the Office of Personnel Management pursuant to section 3 of this order.

Sec. 2. Whenever the Administrator of the National Aeronautics and Space Administration, or the Administrator's designee, decides not to recommend conversion of an appointment under this order or whenever the Administrator, or the Administrator's designee, recommends conversion and the candidate fails to qualify, the candidate shall be separated not later than the date of expiration of the current Schedule B appointment, unless the appointment can be converted through appropriate competitive examination or the candidate can be assigned to a suitable position under another excepted authority prior to the expiration date.

Sec. 3. The Office of Personnel Management shall prescribe such regulations as may be necessary to carry out the purpose of this order.

Executive Order No. 12026

For provisions relating to eligibility for reinstatement in the competitive civil service of certain employees of the Energy Department, see Ex. Ord. No. 12026, Dec. 5, 1977, 42 F.R. 61849, set out as a note under section 7292 of Title 42, The Public Health and Welfare.

By the authority vested in me as President by the laws of the United States of America, including Section 3301 and 3302 of Title 5, and Section 521 of Title 31 of the United States Code, it is hereby ordered as follows:

Section 1. No later than April 1, 1985, any employee of the Office of Management and Budget serving under an appointment under Schedule A in a position not limited to one year or less, concerned with implementation of the President's paperwork reduction and regulatory review and planning programs, may have his or her appointment converted to a career or career-conditional appointment if the Director of the Office of Management and Budget determines that:

(a) The employee has completed at least one year of full-time continuous service in a position concerned with the paperwork reduction and regulatory program;

(b) There is a continuing need for the position filled by the employee;

(c) The employee's past performance has been satisfactory and the employee possesses the qualifications necessary to continue in the position; and

(d) The employee meets the citizenship requirements and qualification standards appropriate for the position.

Sec. 2. If the Director determines not to convert an employee's appointment to career or career-conditional status under the preceding Section, the employee shall be separated not later than the date of expiration of the current appointment.

Sec. 3. Employees whose appointments are converted under this Order shall become career-conditional employees, or career employees if they have completed the service requirements for career tenure, and all converted employees shall acquire a competitive status.

Ronald Reagan.

Executive Order No. 12596

Ex. Ord. No. 12596, May 7, 1987, 52 F.R. 17537, which provided for noncompetitive conversion to career status of certain employees in professional and administrative career positions, was revoked by Ex. Ord. No. 13162, July 6, 2000, 65 F.R. 43212, set out as a note below.

By the authority vested in me as President by the Constitution and laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, it is hereby ordered as follows:

Section 1. Upon recommendation by the employing agency, and subject to qualifications and other requirements prescribed by the Office of Personnel Management, an employee in a position in the excepted service under 5 C.F.R. 213.3102(11) as a reader, interpreter, or personal assistant for a handicapped employee, whose employment in such position is no longer necessary and who has completed at least 1 year of satisfactory service in such position under a non-temporary appointment, may be converted noncompetitively to a career or career-conditional appointment.

Sec. 2. This order shall be effective upon publication in the Federal Register.

George Bush.

Ex. Ord. No. 12718. President's Advisory Commission on the Public Service

Ex. Ord. No. 12718, June 29, 1990, 55 F.R. 27451, provided:

By the authority vested in me as President by the Constitution and laws of the United States of America, including the Federal Advisory Committee Act, as amended (5 U.S.C. App.), and in order to provide a continuing source of advice on the public service from outstanding leaders in various walks of private life, it is hereby ordered as follows:

Section 1. Establishment. The President's Advisory Commission on the Public Service ("Commission") is hereby established. The Commission shall be comprised of 13 members to be appointed by the President from among leading citizens in private life. The members shall be appointed for 2-year terms, except that initial appointments shall include six members appointed to serve 1-year terms. Any vacancy in the Commission shall be filled by an appointment for the remainder of the term for which the original appointment was made, and a member whose term has expired may serve until his or her successor has been appointed. The President shall designate one of the members of the Commission to serve as Chairperson.

Sec. 2. Functions. (a) The Commission shall meet from time to time at the request of the Chairperson and shall consider ways to enhance the public service in American life, including:

(1) improving the efficiency and attractiveness of the Federal civil service;

(2) increasing the interest among American students in pursuing careers in the public service; and

(3) strengthening the image of the public service in American life.

(b) The Commission shall submit a report on its activities to the Director of the Office of Personnel Management and the President each year.

Sec. 3. Administrative Provisions. (a) The members of the Commission shall serve without compensation, but may receive travel expenses, including per diem in lieu of subsistence, in accordance with sections 5702 and 5703 of title 5, United States Code.

(b) All executive agencies are directed, to the extent permitted by law, to provide such information, advice, and assistance to the Commission as the Commission may request.

(c) The Director of the Office of Personnel Management shall, to the extent permitted by law and subject to the availability of funds, provide the Commission with administrative services, staff support, and necessary expenses.

Sec. 4. General. Notwithstanding any other Executive order, the functions of the President under the Federal Advisory Committee Act, as amended [5 U.S.C. App.], except that of reporting to the Congress, which are applicable to the Commission, shall be performed by the Office of Personnel Management in accordance with the guidelines and procedures established by the Administrator of General Services.

By the authority vested in me as President by the Constitution and laws of the United States of America, including sections 3301 and 3302 of title 5 and section 301 of title 3 of the United States Code, and in order to permit certain overseas employees to acquire competitive status upon returning to the United States, it is hereby ordered as follows:

Section 1. A United States citizen who is a family member of a Federal civilian employee, of a nonappropriated fund employee, or of a member of a uniformed service and who meets the qualifications and other requirements established by the Director of the Office of Personnel Management, including an appropriate period of satisfactory service under one or more overseas appointments in the excepted or competitive civil service, may be appointed noncompetitively to a competitive service position in the executive branch within the United States (including Guam, Puerto Rico, and the Virgin Islands). The employing agency in the United States may waive a requirement for a written test for an individual appointed under this order if the agency determines that the duties and responsibilities of the position occupied overseas were similar enough to those of the position to which the individual is being appointed under this order to make the written test unnecessary.

Sec. 2. The Director of the Office of Personnel Management shall prescribe such regulations as may be necessary to implement this order.

Sec. 3. To the extent there is any conflict between this order and Civil Service Rule 8.2 (5 CFR 8.2), the provisions of this order shall control.

Sec. 4. (a) Executive Order No. 12362 of May 12, 1982, as amended, and Executive Order No. 12585 of March 3, 1987, are revoked.

(b) Existing regulations prescribed by the Director of the Office of Personnel Management under Executive Order No. 12362, as amended, shall continue in effect until modified or superseded by the Director of the Office of Personnel Management.

Sec. 5. This order shall be effective upon publication in the Federal Register.

By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, and in order to give individuals with psychiatric disabilities the same hiring opportunities as persons with severe physical disabilities or mental retardation under the Civil Service Rules, and to permit individuals with psychiatric disabilities to obtain Civil Service competitive status, it is hereby ordered as follows:

Section 1. Policy.

(a) It is the policy of the United States to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for persons with disabilities. The Federal Government as an employer should serve as a model for the employment of persons with disabilities and utilize the full potential of these talented citizens.

(b) The Civil Service Rules governing appointment of persons with psychiatric disabilities were adopted years ago when attitudes about mental illness were different than they are today, which led to stricter standards for hiring persons with psychiatric disabilities than for persons with mental retardation or severe physical disabilities. The Civil Service Rules provide that persons with mental retardation, severe physical disabilities, or psychiatric disabilities may be hired under excepted appointing authorities. While persons with mental retardation or severe physical disabilities may be appointed for more than 2 years and may convert to competitive status after completion of 2 years of satisfactory service in their excepted position, people with psychiatric disabilities may not.

(c) The Office of Personnel Management (OPM) and the President's Task Force on Employment of Adults with Disabilities believe that the Federal Government could better benefit from the contributions of persons with psychiatric disabilities if they were given the same opportunities available to people with mental retardation or severe physical disabilities.

Sec. 2. Implementation.

(a) The Director of the Office of Personnel Management shall, consistent with OPM authority, provide that persons with psychiatric disabilities are subject to the same hiring rules as persons with mental retardation or severe physical disabilities.

(b) [Amended Civil Service Rule III.]

Sec. 3. The Director of the Office of Personnel Management shall prescribe such regulations as may be necessary to implement this order.

William J. Clinton.

Executive Order No. 13162

Ex. Ord. No. 13162, July 6, 2000, 65 F.R. 43211, which established the Federal Career Intern Program and provided for its oversight by the Office of Personnel Management, was revoked, effective Mar. 1, 2011, by Ex. Ord. No. 13562, §8(a), Dec. 27, 2010, 75 F.R. 82588, set out as a note below.

Executive Order No. 13318

Ex. Ord. No. 13318, Nov. 21, 2003, 68 F.R. 66317, which related to the Presidential Management Fellows Program, was revoked by Ex. Ord. No. 13562, §8(c), Dec. 27, 2010, 75 F.R. 82588, set out below, on the effective date of final regulations promulgated by the Director of OPM to implement required changes to the PMF Program [July 10, 2012, see 77 F.R. 28194].

Ex. Ord. No. 13473. To Authorize Certain Noncompetitive Appointments in the Civil Service for Spouses of Certain Members of the Armed Forces

Ex. Ord. No. 13473, Sept. 25, 2008, 73 F.R. 56703, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, it is hereby ordered as follows:

Section 1. Policy. It shall be the policy of the United States to provide for the appropriately expedited recruitment and selection of spouses of members of the Armed Forces for appointment to positions in the competitive service of the Federal civil service as part of the effort of the United States to recruit and retain in military service, skilled and experienced members of the Armed Forces and to recognize and honor the service of such members injured, disabled, or killed in connection with their service.

Sec. 2. Definitions. As used in this order:

(a) the term "agency" has the meaning specified for the term "executive agency" in section 105 of title 5, United States Code, but does not include the Government Accountability Office;

(b) the term "Armed Forces" has the meaning specified for that term in section 101 of title 10, United States Code;

(c) the term "active duty" means full-time duty in an armed force and includes full-time National Guard duty, except that, for Reserve Component members, the term "active duty" does not include training duties or attendance at service schools.

(d) the term "permanent change of station" means the assignment, detail, or transfer of a member of the Armed Forces serving at a present permanent duty station to a different permanent duty station under a competent authorization or order that does not:

(i) specify the duty as temporary;

(ii) provide for assignment, detail, or transfer, after that different permanent duty station, to a further different permanent duty station; or (iii) [sic] direct return to the present permanent duty station; and

(e) the term "totally disabled retired or separated member" means a member of the Armed Forces who:

(i) retired under chapter 61 of title 10, United States Code, with a disability rating at the time of retirement of 100 per cent; or (ii) [sic] retired or separated from the Armed Forces and has a disability rating of 100 percent from the Department of Veterans Affairs.

Sec. 3. Noncompetitive Appointment Authority. Consistent with the policy set forth in section 1 of this order and such regulations as the Director of the Office of Personnel Management may prescribe, the head of an agency may make a noncompetitive appointment to any position in the competitive service, for which the individual is qualified, of an individual who is:

(a) the spouse of a member of the Armed Forces who, as determined by the Secretary of Defense, is performing active duty pursuant to orders that authorize a permanent change of station move, if such spouse relocates to the member's new permanent duty station;

(b) the spouse of a totally disabled retired or separated member of the Armed Forces; or

(c) the unremarried widow or widower of a member of the Armed Forces killed while performing active duty.

Sec. 4. Administrative Provisions. The heads of agencies shall employ, as appropriate, appointment authority available to them, in addition to the authority granted by section 3 of this order, to carry out the policy set forth in section 1.

Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to a department or agency or the head thereof; and

(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative functions.

(b) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its agencies, instrumentalities, or entities, its officers, employees, or agents, or any other person.

George W. Bush.

Ex. Ord. No. 13518. Employment of Veterans in the Federal Government

Ex. Ord. No. 13518, Nov. 9, 2009, 74 F.R. 58533, provided:

By the authority vested in me by the Constitution and the laws of the United States of America, including section 301 of title 3 of the United States Code, I hereby order as follows:

Section 1. Policy. Veterans have served and sacrificed in defense of our Nation. When they complete their service, we must do everything in our power to assist them in re-entering civilian life and finding employment. Government as well as private employers should play a prominent role in helping veterans who may be struggling to find jobs. As one of the Nation's leading employers, the Federal Government is in need of highly skilled individuals to meet agency staffing needs and to support mission objectives. Our veterans, who have benefited from training and development during their military service, possess a wide variety of skills and experiences, as well as the motivation for public service, that will help fulfill Federal agencies' staffing needs. It is therefore the policy of my Administration to enhance recruitment of and promote employment opportunities for veterans within the executive branch, consistent with merit system principles and veterans' preferences prescribed by law. The Federal Government will thereby help lead by example in promoting veterans' employment.

Sec. 2. Council on Veterans Employment. There is hereby established an interagency Council on Veterans Employment (Council), to be co-chaired by the Secretaries of Labor and Veterans Affairs. The Director of the Office of Personnel Management (OPM) shall serve as Vice Chair of the Council.

(a) Mission and Function of the Council. The Council shall:

(i) advise and assist the President and the Director of OPM in establishing a coordinated Government-wide effort to increase the number of veterans employed by the Federal Government by enhancing recruitment and training;

(ii) serve as a national forum for promoting veterans' employment opportunities in the executive branch; and

(iii) establish performance measures to assess the effectiveness of, and submit an annual report to the President on the status of, the Veterans Employment Initiative described in section 3 of this order.

(b) Membership of the Council. The Council shall consist of the heads of the following agencies and such other executive branch agencies as the President may designate:

(i) the Department of State;

(ii) the Department of the Treasury;

(iii) the Department of Defense;

(iv) the Department of Justice;

(v) the Department of the Interior;

(vi) the Department of Agriculture;

(vii) the Department of Commerce;

(viii) the Department of Labor;

(ix) the Department of Health and Human Services;

(x) the Department of Housing and Urban Development;

(xi) the Department of Transportation;

(xii) the Department of Energy;

(xiii) the Department of Education;

(xiv) the Department of Veterans Affairs;

(xv) the Department of Homeland Security;

(xvi) the Environmental Protection Agency;

(xvii) the National Aeronautics and Space Administration;

(xviii) the Agency for International Development;

(xix) the General Services Administration;

(xx) the National Science Foundation;

(xxi) the Nuclear Regulatory Commission;

(xxii) the Office of Personnel Management;

(xxiii) the Small Business Administration; and

(xxiv) the Social Security Administration.

A member of the Council may designate, to perform the Council functions of the member, a senior official who is part of the member's agency, and who is a full-time officer or employee of the Federal Government.

(c) Administration of the Council. The Co-Chairs shall convene meetings of the Council, determine its agenda, and direct its work. At the direction of the Co-Chairs, the Council may establish subgroups consisting exclusively of Council members or their designees, as appropriate. The Vice Chair shall designate an Executive Director for the Council to support the Vice Chair in managing the Council's activities. The OPM shall provide administrative support for the Council to the extent permitted by law and within existing appropriations.

(d) Steering Committee. There is established within the Council a Steering Committee consisting of the Secretaries of Defense, Labor, Veterans Affairs, and Homeland Security, the Director of OPM, and any other Council member designated by the Co-Chairs. The Steering Committee shall be responsible for providing leadership, accountability, and strategic direction to the Council.

Sec. 3. Veterans Employment Initiative. The agencies represented on the Council shall participate in a Veterans Employment Initiative (Initiative). Under the Initiative, each participating agency shall, to the extent permitted by law:

(a) develop an agency-specific Operational Plan for promoting employment opportunities for veterans, consistent with the Government-wide Veterans Recruitment and Employment Strategic Plan described in section 4 of this order, merit system principles, the agency's strategic human capital plan, and other applicable workforce planning strategies and initiatives;

(b) within 120 days of the date of this order, establish a Veterans Employment Program Office, or designate an agency officer or employee with full-time responsibility for its Veterans Employment Program, to be responsible for enhancing employment opportunities for veterans within the agency, consistent with law and merit system principles, including developing and implementing the agency's Operational Plan, veterans recruitment programs, and training programs for veterans with disabilities, and for coordinating employment counseling to help match the career aspirations of veterans to the needs of the agency;

(c) provide mandatory annual training to agency human resources personnel and hiring managers concerning veterans' employment, including training on veterans' preferences and special authorities for the hiring of veterans;

(d) identify key occupations for which the agency will provide job counseling and training to better enable veterans to meet agency staffing needs associated with those occupations; and

(e) coordinate with the Departments of Defense and Veterans Affairs to promote further development and application of technology designed to assist transitioning service members and veterans with disabilities.

Sec. 4. Additional Responsibilities of the Director of the Office of Personnel Management. The Director of OPM shall, in consultation with the Council and to the extent permitted by law: